Archive for November 12th, 2004

How to “Drive” Under the Influence While Sleeping

Friday, November 12th, 2004

The DUI laws make it unlawful to drive (or, in some states, "operate") a vehicle while under the influence of alcohol (or over .08% blood-alcohol). That seems pretty clear: driving…vehicle…under the influence. Not really very complicated, is it? No, unless you’re an officer, a prosecutor or a MADD lobbyist trying to stretch the language of these laws to fashion a larger net.

How about that little word "driving", for example? Now just what does that really mean? Well, it means driving. Engine on, moving, steering, shifting, braking… that kind of thing, right?

Wrong.

Let’s take a look at a few examples of how law enforcement, prosecutors and courts have increasingly expanded that seemingly simple word to widen the DUI dragnet — by doing violence to the clear language and intent of the law.

- Engine off, car being pushed or towed….Let’s consider a case where the engine was off, but it was in motion — say, being towed? And the defendant was behind the wheel, steering: Is that driving?Yes, say some courts: "While a person is being towed, the person assumes responsibility for steering and braking the vehicle in a safe manner." State v. Dean (Oregon, 733 P.2d 105). Well, ok, maybe it’s not a huge stretch to include a towed car within the term "driving". At least it’s moving.

- Engine on, but vehicle parked….What if the car isn’t moving? What if the individual is just sitting behind the wheel of his car, parked but with the engine on, say, to keep the heater working?Many courts will require some movement of the vehicle, but others consider this "driving" or "operating".

- Engine on, but vehicle inoperable….An Ohio court had no trouble finding "driving" where the defendant was behind the wheel of her car, engine on — but stuck in the mud with two blown tires. City of Columbus v. Seabolt (607 N.E.2d 61).

- Engine off, vehicle parked….How about if the engine is off? If you’re just sitting behind the wheel of a parked car? More disagreement among the courts. The Colorado Supreme Court found "driving" where the defendant was behind the wheel of a car in a private parking lot, engine off — but the lights on. MVD vs.Warman (763 P.2d 558).

- Engine off, and vehicle inoperable….What if the car has a mechanical problem or is out of gas? If the car won’t start, how can it be driven? Not a problem, according to some courts anxious to sustain convictions.

Well, heck, next thing they’ll be arresting folks in their cars for "sleeping under the influence". Actually, hard as it may be to believe, they’ve been doing just that for quite awhile. There are plenty of appellate cases affirming DUI convictions where the defendant was asleep or unconscious in his car. – Engine on, "driver" asleep or unconscious….That’s "driving", say a number of courts. See, for example, Matter of Clayton (Idaho, 748 P.2d 401). Even in those cases where the engine was left on in cold weather so the heater could work.

Well, surely no one can say a person is driving if he is asleep AND the engine is off? – Engine off, "driver" asleep or unconscious….Amazingly, there is no shortage of courts willing to extend the crime of driving under the influence to individuals who are found asleep or unconscious in cars whose engines are turned off. In State v. Lawrence (849 S.W.2d 761), for example, a Tennessee court held that a defendant asleep on the driver’s side with the keys in his pocket was in sufficient physical control of the car to satisfy the statute. And in State v. Peterson (Mont. 769 P.2d 1221), a DUI conviction was sustained where the "driver" was found slumped onto the middle of the front seat; the car was off the roadway and the keys were in his pocket.

Don’t we want to encourage folks who think they may have had too much to drink to pull over and sleep it off? Why would we want to discourage this by arresting them? And what’s going on here with the word game? What does NOT constitute "driving"? Why are some courts so willing to support police and prosecutors from going far beyond the clear wording and intent of the laws?

The answer may be found in a Minnesota case, in which a conviction was sustained where the defendant was found in his pickup, engine off and with his head resting on the steering wheel. "The real purpose of the statute", the court wrote, " is to deter individuals who have been drinking intoxicating liquor from getting into their vehicles." State v. Juncewski (Minn., 308 N.W.2d 316)

Funny, I thought the "real purpose" of laws was to punish people who actually committed the crime — not just to send people to jail who came close. If the "real purpose" of the law is as stated by the Court, why didn’t the legislature just prohibit citizens "who have been drinking intoxicating liquor from getting into their vehicles"? Of course, then the guy working on his engine would get arrested for "getting into" his vehicle. And the guy changing a tire. And…..

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