The short answer is: Yes. However, the more complete question is whether you can be arrested and charged with a DUI in Kansas if you weren’t actually operating the vehicle.
Under Kansas law, a DUI is defined as operating or attempting to operate any vehicle while over the legal limit of .08 or while alcohol impaired to a degree that renders the operator incapable of safely driving.
To “operate” a vehicle in Kansas means to actually move it forward or backward. “Attempting to operate” a vehicle means to try to move the car and fail. A recent Kansas Supreme Court case found that a driver placing her hand on a gearshift knob and wiggling it was enough to prove an “attempt” to engage the transmission and move the car.
Kansas has expressly rejected the notion that to merely sitting in a car that is running or being in “actual physical control” of a car is enough to prove operation or an attempt to operate a car. The public policy in Kansas is that it is best to allow people to sleep in the cars with the heater or air conditioner running as opposed to have them chance driving, or freeze to death.
Given the above, it’s wise for any motorist who believes they’ve had too much to drink to be proactive in order to avoid any risk of a DUI.
It’s no longer just about “don’t drink and drive;” but is now more about “don’t drink, and then get anywhere near a vehicle.” It doesn’t take much for the government to suggest that you “attempted” to drive a car. Unless there is no other recourse, stay out of the car. If you get in the car and do not intend to drive, then don’t get in the driver’s seat. Sit in the passenger’s seat or the backseat.