Pulling
Over and Sleeping it Off:
Still a DUI?
Information
courtesy of Lawrence Taylor - DUIblog
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 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
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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.
Law Offices of Lawrence Taylor, Inc.
Practice limited to DUI defense
Los Angeles, California
http://www.DUIcentral.com/
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