Could I Be Arrested for DUI When I Was Not Driving?

 Posted on April 07, 2025 in DUI

DUI convictions in Maryland have serious penalties and consequences. Some of them are straightforward – jail, fines, and fees. Collateral consequences can include the loss of your job, the inability to obtain employment, the loss of your driver’s license, extremely high insurance rates once you are allowed to drive, mandatory installation of an ignition interlock device, and judgment from family and friends.

If you are charged with DUI, your best course of action is to speak to an experienced Silver Spring, MD DUI attorney who can assess your situation and help you plan the best course of action. There are certain situations that are even more complex, such as receiving a DUI when the officer did not actually see you driving, or you were sleeping it off in the back seat of your car.

How Can a Police Officer Know Whether You Might Drive Under the Influence?

Maryland Transportation Code Section 21-902 is worded so that it is illegal to drive or "attempt to drive" a motor vehicle while under the influence of drugs or alcohol. The conduct that makes up "attempting to drive" a motor vehicle is broader than you might think.

In Atkinson v. State, the court concluded that an inebriated person sleeping in his or her vehicle with the keys in the ignition did not have sufficient actual physical control of the vehicle to warrant a DUI. The ruling primarily resulted from the belief that pulling over to wait until the driver sobered up was safer than having an impaired driver put others at risk.

This particular ruling was tempered by the fact that if the police in Maryland have a suspicion that you intend to drive while impaired, you could be charged with DUI. This means that even if an officer did not specifically see you operate a motor vehicle, you may have exhibited certain behaviors or actions that could lead an officer to believe you will try to drive while impaired.

What Are the Behaviors That Can Lead an Officer to Believe You Will Drive While Impaired?

If the police are watching you get into your vehicle and you are stumbling, talking loudly, and slurring your words, the officer may assume you are inebriated. This assumption does not rise to the level of probable cause that you will now drive. Additional behaviors that can lead to a DUI – even when you were not driving under the influence – include:

• You are sitting in the driver’s seat rather than the passenger’s seat or the back seat.
• Your key is in the ignition, and/or your lights are turned on.
• A witness says they saw you driving drunk before the police saw you.  
• You are parked on the side of the road, which leads the police to surmise you were driving.

While you cannot be charged with DUI only because a witness says he or she saw you driving erratically, if that statement is coupled with you sitting in the driver’s seat with the key in the ignition and you fail field sobriety tests, then the officer has probable cause to charge you with DUI.   

What Are Some Common Defenses for DUI When You Were Not Driving?

While each situation is unique, your attorney may argue that there is a lack of evidence that you were driving or intended to drive. If your car was legally parked in a private driveway or parking lot, your attorney could argue that you posed no risk to the public (as opposed to it being parked on the side of the road). The officer may not have had probable cause to approach you or conduct a search of your vehicle or your person. If this is true, your attorney may be able to have the charges dropped.

Contact a Montgomery County, MD DUI Lawyer

An aggressive defense is necessary to fight DUI charges, even when no driving occurred. A knowledgeable Silver Spring, MD DUI attorney from The Law Offices of Gerstenfield & Demirji, PC.. We are available 24/7, have good relationships with local prosecutors, are fluent in Arabic and Spanish, and will zealously advocate for your rights and future. Schedule your free consultation today by calling 301-589-9500.