It's a famous case in Virginia: Sarafin vs. Commonwealth. A man was in his car, in his driveway, intoxicated and listening to music. A neighbor called in a noise complaint. An officer responded and found the man asleep in his car. The man was tried and convicted of DUI. The court of appeals upheld the conviction.
How can that happen? He wasn't even driving.
The courts hold a very encompassing view of DUI. Specifically, if someone is found to be "in control of the vehicle" and that person is intoxicated, he may be charged with driving under the influence.
How can you be in control of a car if it is not moving?
Put simply, the courts have found that when a car key is in the ignition, the car is capable of being driven at a moment's notice, and at the whim of someone who has had too much to drink--thereby creating a scenario where driving under the influence is an imminent possibility.
How can I be found guilty of a "possibility?"
That's a good question and generally not something for which someone could necessarily be convicted unless there was clear and convincing evidence that the possibility was more of a probability, and there was some correlating evidence--think, for example, of someone charged with a conspiracy crime. In that case, evidence might show that someone's actions have gone from possible to probable.
You didn't answer my question.
In a nutshell, courts have decided that because of the extreme danger a drunk driver poses to the community, even the possibility of driving drunk is enough to prosecute. To quote the Supreme Court of Virginia in this case: "Ordinary experience tells us that one in a drunken stupor in the driver's seat of a vehicle is likely to arouse abruptly, engage the motive power of the vehicle, and roar away imperiling the lives of innocent citizens. This sequence of events easily can occur where, as here, a drunk is sitting behind the steering wheel of a motor vehicle alone, with the key already in the ignition".
That just doesn't seem right.
It does seem a little confounding. But the law is strict in its desire to keep drunk people from driving.
So what should I do if that happens to me?
First, beyond identifying yourself as required by law, refuse to say anything unless an attorney is present. It is your constitutional right not to incriminate yourself. Do not say a word. Do not say where you have been, do not give an explanation of what you were doing earlier, do not explain how you came to be asleep in a car.
I get it. Don't talk. Then what?
Hire a qualified criminal defense attorney who has experience in dealing with the cops and the courts. Let that attorney be your voice. Your attorney will gather all pertinent information, and build a case based on your unique circumstances.
Will I go to jail?
That's hard to say. First, remember that you are innocent until proven guilty. Second, if you are convicted, there are a variety of penalties ranging from community service to fines to jail time. Much depends on whether this was your first DUI and what your blood alcohol content (BAC) was.
Any other input?
If you are going to drink, don't drive. Get a designated driver. If you don't have one, get a cab. No matter what the cost, it is almost certainly going to be vastly cheaper than the costs of associated with a DUI.