Sleeping Under the Influence?

Posted by Lawrence Taylor on August 29th, 2013

I received a number of queries concerning my previous post, "Parking Under the Influence". And the answer is….Yes, you can be arrested in many states for "sleeping under the influence" in your parked car — on the shaky theory that you were probably driving some time earlier and were probably intoxicated at the time.

What was unusual about the Alabama story was that those asleep in their cars had admittedly never driven — but were arrested because they might. The response of MADD and government has been that this helps prevent DUI-related fatalities. As the Alabama sheriff said, "What if they woke up at 2:00am…and decided to drive?" What is frightening, of course, are the obvious ramifications: Where do we stop once we decide to punish folks for what they might do?

In any event, despite the rhetoric about preventing traffic fatalities, the real concern seems increasingly focused on punishment rather than prevention:

Question: If an individual begins driving home from a restaurant and realizes he has had too much to drink, what do we want him to do — if we are truly interested in preventing an accident?

Answer: We would like to see that person pull over and sleep it off.

Question: How do we encourage that conduct?

Answer: We don’t punish him for doing it.

Question: Then why do police continue to arrest and the courts continue to convict these folks for drunk driving?

There are two issues involved. First, the legal issue: Although under the influence, was the individual driving?  The various states have slightly different definitions of what constitutes "driving", but they usually involve "operating" or being "in physical control" of a motor vehicle.

Second, the public policy issue: Shouldn’t we encourage conduct that seeks to avoid danger to the public and/or commission of a crime?

Looking at the legal issue first, how can a person be "operating" or "in physical control" of a vehicle if he is asleep? Well, in their stampede to "get tough" on drunk drivers, many states have stretched their definitions of "driving" to the breaking point — and beyond. In State v. Lawrence, 849 S.W.2d 761, for example, the Tennessee Supreme Court held that a defendant who was asleep on the driver’s side of his parked vehicle with the keys in his pants pocket was in "physical control" within the meaning of the DUI statute — and thus guilty of drunk driving. Similarly, in State v. Peterson, 769 P.2d 1221, the Montana Supreme Court held that the defendant was in "actual physical control" of the vehicle when he was found parked off the roadway, asleep in the driver’s seat with the keys in his pocket. There are, fortunately, other courts which have held that this does not constitute driving. See, for example, State v. Bugger, 483 P.2d 404 (Utah).

Most courts do not address the second issue: legalities aside, as a public policy matter should such conduct be punished? This is possibly because judges may feel that is a matter for the legislature to address. But consider the holding of an Arizona court in reversing a DUI conviction:

The interpretation we place on the legislature’s imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway. Arizona v. Zavala, 666 P.2d 456.

Makes sense. Of course, angering MADD is not a good way to get reelected to the bench or the legislature.

  • llDayo

    I can’t wait to get arrested for DUI for sleeping in my house on the second floor, with my keys on the first floor and alcohol available in the house but not in my system. Technically I’m “in control” of my vehicle and at some point could end up consuming some adult beverages.

  • Captain Ned

    Had a friend who escaped the sleeping DWI. He was crashed out in the bed of his pickup and the officer asked him where his keys were, obviously because if in pocket he’d be arrested for DWI. The friend truthfully told the officer that he’d chucked them into the cornfield across the road and there was no point in looking for them in the dark. Officer let him go and I spent a couple of hours the next morning walking the corn rows to help him find his damn keys.

  • Andre Smith

    One time me and my now-wife had a fight and I had to sleep in my car. Knowing that having any amount of alcohol in your system and keys in possession, I simply hid them under the hood.

    And yes, there were many times where I wish I could simply pull over to sober up, but that would be a guaranteed DUI, whereas pressing forward will get you home safely 99.99% of the time.

  • The question is HOW you ended up sleeping on the side of the road in your car – with or without keys? Most likely you “gave it a shot to make it home safely” when deciding to drive after having one too many drinks? Half way to your home conscience hit you and you decided to pull over and take a nap? Sorry Pal: You drove drunk!

    Look at the mentioned policy “… we encourage conduct that seeks to avoid danger to the public …”

    The RIGHT and CORRECT thing to do (which is being encouraged for decades!) is to catch a cab, have a buddy drive you home or walk.

  • Bill in IL

    Martin, what a chain begging police state apologist you are!

    II Dayo is right, this policy can, and most likely will, lead to someone sitting on their deck drunk being arrested for DUI because his car is in the driveway and he has his keys in his pocket.

  • The advice I give clients in this situation is to pull over and sleep in the passenger seat or the back seat.

    The other piece of advice, of course, is to refuse to do any Field Sobriety tests, and to invoke your right to silence regarding any police questioning, besides questions about your age and identity.