Most people know that intoxicated driving can have serious criminal, civil and financial consequences. It can also endanger your life and others. A motorist who has had too much to drink and chooses not to drive should be commended, but they have to be aware that climbing into their car to sleep or to wait until some of the alcohol effects wear off can still expose them to a DUI charge.
A motorist does not have to be driving to be arrested and convicted of intoxicated driving. Every state requires that for a DUI to be charged, a motorist has to be in “actual physical control” of the vehicle. Typically, this means that if a person is in the car and the keys are in the ignition, even if the motor is not running, they are considered in “actual physical control.” It may not matter if the potential driver had no intention of driving the vehicle.
The states differ in their interpretation of “actual physical control.” The Minnesota Supreme Court upheld a DUI conviction of a man with a blood alcohol level of 0.18 who had had his keys in the center console of his car. His car also would not start, but the court interpreted the phrase “physical control” to include the possibility that the defendant could have started his car, regardless of whether he intended to or not.
The New Mexico Supreme Court, however, limits physical control to situations where the state must prove the driver intended to drive. It reasoned that public safety would be better served if motorists decided to use their vehicles as temporary shelters with no intent to drive. In other words, being a passive occupant may does not rise to the level of actual physical control.
In most states, a motorist in their car with the engine running usually signals to law enforcement that the driver is in physical control and can drive at any moment. To escape a conviction, an intoxicated motorist should either leave their keys outside their vehicle, or find someplace else to sleep it off.
If an officer comes upon a vehicle with a driver asleep in either the front or back seat, they can ask the motorist to take field sobriety tests (FST) so that the officer can observe the driver’s coordination and performance. A motorist can refuse to take the FST, and if the driver has a physical disability, the driver should advise the officer of his or her condition.
The FST must take place on a dry, even surface. It can include standing on one leg while counting out loud, a finger to the nose with eyes closed, a heel-to-toe walk along a line with turns, and reciting the alphabet. The officer is looking for balance, signs of swaying, and an ability to follow directions.
If a motorist performs poorly, the officer can request that the driver take a breath or blood test. A refusal can result in license suspension of at least one year. The question of physical control can be complicated so a motorist in this situation is advised to see professional assistance from an experienced DUI or criminal defense attorney.
Receive a free initial consultation with a Liberal Kansas DUI attorney by calling (620) 624-8158 today. Koehn & Tahirkheli, L.L.C. serves the cities of Liberal, Garden City, Sublette, Elkhart, Johnson City, Hugoton, Ulysses, Dodge City, Meade, Seward county, and serving all other communities in Southwest Kansas.