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Can you be arrested for drunk driving if a cop never saw you driving?

You get into the driver’s seat after an evening of delicious food and great wine with friends, after you put the keys in the ignition and start the car you realize that you are impaired and shouldn’t drive home. You leave the car in park and call your buddy to come pick you up and decide to sleep in the car while you wait for him to come get you. You are awoken by a police officer tapping on your window who then proceeds to arrest you for a DUI. You weren’t driving, is this really a legal arrest?

The answer, probably. According to the Vehicle Code, a police officer does not have to actually witness you driving, or even physically in a car, to arrest you for a DUI conviction.

The Vehicle Code §40300.5. states:

“In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists:

(a) The person is involved in a traffic accident.

(b) The person is observed in or about a vehicle that is obstructing a roadway.

(c) The person will not be apprehended unless immediately arrested.

(d) The person may cause injury to himself or herself or damage property unless immediately arrested.

(e) The person may destroy or conceal evidence of the crime unless immediately arrested.”

The reason for your arrest may fall under section (d) in this case. By sitting in the car with the engine on you could potentially drive away at some point, while intoxicated, and get into an accident. Therefore, it is the cop’s responsibility to arrest you to ensure that you never make it onto the road as a drunk driver that night. The lesson in this situation is stay away from a car if you have had anything to drink and call a cab (we recommend Sammy’s Limo’s). If you do find yourself facing a DUI arrest report and would like your best possible changes at fighting the penalties for a DUI conviction you should find a DUI Lawyer.  Santa Barbara DUI Attorney Kenneth M. Hallum offers a free case consultation. Call today 805-564-3101. Know your rights, options and defenses against drunk driving.

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About Santa Barbara DUI Attorney Kenneth M. Hallum:
As a DUI defense attorney, Kennnth Hallum is dedicated to an understanding of the art and science of California DUI defense with memberships in the California DUI Lawyers Association, the National College of DUI Defense, the National Association of Criminal Defense Lawyers, the California Public Defenders Association, and the State Bar of California.

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