MONDAY, OCTOBER 24, 2011
Can you get a DUI without driving? Though it seems an oxymoron, the answer is yes. You'd be surprised how many drivers don't realize it could happen.
Consider the Florida man whose roommate objected to his choice of late-night music, so he took his tunes outside to listen to in his car. That turned out to be a big mistake. He was arrested on suspicion of DUI after deputies knocked at his window and decided to conduct a field sobriety test, which he failed.
Or the case of a North Carolina woman who was arrested at a fast-food joint after she was found asleep behind the wheel with the engine running. Or the New Jersey camper who was found passed out in the back of his pickup at a campsite and charged with DUI. Or farther afield, the Alaska man who was stuck in a snowdrift and found to have a blood-alcohol ratio more than four times the legal limit, or the Canadian man who was seen pushing his vehicle by deputies and subsequently failed a field sobriety test.
Tales abound across America of drivers who were found asleep in their vehicles, usually incapacitated, and were stunned to find a sheriff's deputy or patrol officer knocking at their door. Usually when confronted with a dazed driver who may quickly become belligerent, a field sobriety test is pretty much automatic. And then, often, it's into handcuffs and a trip to the calaboose. Some drivers, even then, don't realize why they've been busted.
"Actual Physical Control"
Florida lawyer David Haenel has defended many "DUI without driving" cases, including the man with the loud music and the complaining roommate, and says it's a common occurrence. A former state DUI prosecutor of the year who switched sides and now runs the site fightyourdui.com, Haenel says that drivers usually are convicted by the legal precept of "actual physical control" of any vehicle.
In the Florida case, the man had his keys in the ignition to allow his music to play. Some drivers found impaired in their vehicles have turned on their car for heat or AC, Haenel explains. Usually, such drivers are found asleep, but as their keys are in the ignition or on their person, they are found to have "actual physical control" in the eyes of the law.
"A person may be sitting in a vehicle and the keys may be in the ignition. They may have no intention of driving the vehicle, but the car is on," he says. Haenel says such laws are "uniform" across the nation.
Actual physical control, by definition, means the defendant must physically be in or on the vehicle and have the capability to operate the vehicle, regardless of if he or she operated the vehicle at the time.
Haenel says often drivers have no intention of driving, that they've either left a party or drinking establishment, realized that they are impaired and decided to sleep in their cars. Usually they're startled by an officer, who often will realize the driver is impaired and administer a field sobriety test.
If the driver refuses a breath or blood test, the same rules apply as for a regular DUI test. Often, a driver will lose their license for a period and be expected to attend DUI classes. A heavy fine is almost always levied, and a driver will face a hike in their auto insurance.
Haenel says if a driver has been proven to have actual physical control of a vehicle, he will often try to get surveillance video from the surrounding area in a bid to prove that a driver had no intention of driving, that they had been parked in the vehicle for several hours, which could show the driver had no intent to drive.
A simple way to avoid such charges, of course, is to not drink to begin with, or arrange alternate transportation or a designated driver. But Haenel says the best way to avoid an instance of DUI without driving is to "get rid of the car keys."
"They should put them underneath or on the passenger side tire, if they have a release for their trunk, that would be ideal. But most people don't think of that until they're in handcuffs."