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Marsha411JD
Marsha411JD, Lawyer
Category: Criminal Law
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Experience:  Licensed attorney with 27 yrs. exp. in criminal law
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I received a DUI while parked in an open area that was not

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I received a DUI while parked in an open area that was not on the Highway and the only area I could park my vehicle. I was asleep in a fully reclined position and my vehicle was not running when I was contacted by a Ca Highway Patrolman. There were no other possible places to park my vehicle. The CHP Officer had me step out of my vehicle and proceeded to give me a FST, of which I felt I passed, and he did not indicate. He then asked me to a Breath Test, at which point I asked why since I was not operating the vehicle and was asleep for hours. I did indicate that I had drinks the evening before, however I did not want to take the Breath test. At that time I was arrested for suspicion of DUI. Once at the station (Indio, Ca) I was told I must take a Blood, Urine or Breath test. I agreed and blew a .12. My question: Is this a legitimate DUI arrest if I was not driving? What are my rights/arguments here? I was sleeping off the highway. There was not any rest area to my knowledge as I was not familiar with the area. Can I beat this?
Submitted: 5 months ago.
Category: Criminal Law
Expert:  Marsha411JD replied 5 months ago.
Hello,

Thank you for the information and your question. Although this is in no way an easy case either way, you could have a few potentially successful defenses/issues that you could fight this charge with. One would be that there was no probable cause to approach your car in the first place. That would depend entirely on all of the facts and circumstances of where you were parked, etc., but would be one issue to discuss in detail with your criminal defense attorney. If there was no probable cause, then all of the evidence from the stop/approach onward will be suppressed and there would be no evidence of a DUI.

The next issue is that the State has to prove that you "drove" under the influence. It is not impossible to do when someone is found in a parked car, but it is more difficult as the evidence has to show that there was no alcohol in the vehicle (so you couldn't have drinks after you parked), the keys were in your possession, and you either admitted to drinking before you pulled over or the car was still warm, or there was no other way your vehicle could have gotten to where you were parked. Again, something else to discuss in detail with your attorney.

The FST can always be challenged, unless there is a video that clearly shows your inability to perform the tests and there are no other medical explanations. Then the Breathalyzer itself is also always subject to challenge, either in the way it is calibrated or in the way it was administered. So, there are plenty of issues that a good DUI attorney can use to try to get a dismissal.

If you want to read some more information on all of the potential defenses or pitfalls for the State in a DUI case, you can take a look at: http://www.shouselaw.com/ca-dui-defense.html

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Marsha411JD, Lawyer
Category: Criminal Law
Satisfied Customers: 16627
Experience: Licensed attorney with 27 yrs. exp. in criminal law
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