Wake Up!! You’re Under Arrest for DUI!!

DWI-blogpic2Cinco de Mayo. A time for fun, friends, celebration, drinking and increased DWI/DUI arrests. It’s a no brainer that one can be arrested if caught drinking and driving, but how is it that one can be arrested while merely sleeping off the effects of drinking in a parked car? The answer lies in the definition of “driving”.

Consider the following:  Justine goes to a party, she drinks too much.  She realizes that she is unable to safely make her way home so she pulls over.  It’s cold outside, so she leaves the key in the ignition and the car running to stay warm.   She puts her head back, closes her eyes and proceeds to take a nap.  A half our later, there’s a tap at the window and she hears a muffled voice saying “Step out of the car ma’am.”  Following a series of sobriety tests, Justine’s blood alcohol level is found to be higher than .08 and she is immediately arrested and charged with DUI.  How did this happen, when she wasn’t even driving?

Maryland Transportation Article § 11-114 defines “driving” as operating, moving, or being in actual physical control of a vehicle, including the exercise of control over or the steering of a vehicle being towed by a motor vehicle”.  For the purposes of this article, the focus is on the words “being in actual physical control of a vehicle”.  While every case is different, Maryland law analyzes whether or not one is in “actual physical control” of a motor vehicle, by taking into account a number of factors, including the following:

1) whether or not the vehicle’s engine is running, or the ignition on;
2) where and in what position the person is found in the vehicle;
3) whether the person is awake or asleep;
4) where the vehicle’s ignition key is located;
5) whether the vehicle’s headlights are on;
6) whether the vehicle is located in the roadway or is legally parked.

While there are many facts and circumstances to consider, no one factor alone will necessarily be dispositive of whether Justine was in “actual physical control” of the vehicle. Rather, each one must be considered with an eye towards whether there was, in fact, a present or imminent exercise of control over the vehicle or, instead, whether the vehicle was merely being used as a stationary shelter.

Given the facts in Justine’s situation, it can be initially inferred that she was in actual physical control of her vehicle and therefore “driving” according to Maryland law.  This further infers that she posed a threat and therefore was subject to arrest. In fact, the court’s have determined that the strongest factor lies in whether there is evidence that the individual started or attempted to start the vehicle’s engine.  The theory is that once an individual has started the vehicle, he or she has come as close as possible to actually driving without doing so and will generally be in “actual physical control” of the vehicle. In sum, the primary focus is whether the person was merely using the vehicle as a stationary shelter or whether it is reasonable to assume that the person would, while under the influence, jeopardize the public by exercising some measure of control over the vehicle.

Of course, it would have been less likely that Justine would have been charged with a DUI had she removed the key from the ignition and fell asleep in the backseat of the car because she would have been totally passive, had not in any way attempted to actively control the vehicle, and thus, there would have been no reason to believe that, while she was inebriated, she would have imminently gained control over the vehicle in her condition.

Keep in mind, however, that while she may not have been found in “actual physical control” of the vehicle and avoided the DUI charge, this would not necessarily mean that she would have been saved from some other drunk driving offense.  She could have still been arrested if, despite the fact that she was found in the rear of the car, there was enough other evidence to conclude that she had, in fact, previously driven, operated, or moved the vehicle while under the influence.

With regard to driving under the influence, take note that it is defined in Maryland’s Transportation code §21–902, which states that a person may not drive or attempt to drive any vehicle while under the influence of alcohol – greater than .08.  In addition, a person may not drive or attempt to drive any vehicle while the person is under the influence of alcohol per se.  Finally, a person may not drive or attempt to drive any vehicle while impaired by alcohol, which will be initially assumed if the person’s blood alcohol level is .07 an .08.  Of course for persons under 21 years of age, that person must have a restriction placed on their driver’s license that prohibits them from operating a motor vehicle with alcohol in the blood at all. If stopped and found to have a blood alcohol level of at least .02, it will be initially assumed that there is a violation of driving with alcohol in the blood.

How much alcohol will it take for your blood alcohol level to rise above the legal limit?  Follow these links to a blood alcohol level chart and interactive calculator to find out:  http://www.brad21.org/bac_charts.html – general chart and http://www.ou.edu/oupd/bac.htm – BAC interactive calculator.

Thanks for reading. Please note that I am licensed to practice law in Maryland and the District of Columbia. Please feel free to learn more about my practice at www.kelseylaw.net and to seek legal advice when you feel it necessary.

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Categories: Criminal, DUI, DWI

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