Not only does the motor need to be running, but the car needs to actually be moving. Some states have operating under the influence statutes which allow prosecution for being in or around the car while drunk. California requires what's called volitional movement of the vehicle to obtain a conviction. I like to remind cops, prosecutors and people that the "D" in DUI stands for driving and they must prove that the person charged was driving to obtain a conviction. There are a couple of exceptions to the driving requirement and those are covered under Vehicle Code Section 40300.5. For instance, if you've been in an accident or if the car is blocking the roadway, then the cops don't need to see the car move. Without a witness to driving, the prosecutor can't establish time of driving. Without time of driving, the defendant's blood alcohol content at the time of driving, necessary for a conviction, cannot be proven. In addition to the requirement to prove Driving at trial, the common law and Penal Code Section 836 require that a misdemeanor offense occur in the presence of the cop who makes an arrest for the arrest to be lawful. A DUI cannot occur in the officer's presence, if he doesn't see (sense) driving.
Answered on Aug 06th, 2013 at 9:45 PM