DUI Arrest without Driving?

In a recent New Jersey case a man had too much to drink and, rather than drive himself home and risk an accident or DUI, he decided to sleep it off on the seat of his pickup truck which was parked in a deli parking lot. It would seem to the rational that he made the correct decision in choosing not to drive while intoxicated. The law, however, is not always strictly rational.

The Scenario

After sleeping for several hours, the man turned the engine of his truck on in the early morning hours in order to be able to use the heater and get warm. An officer, seeing the parked but running truck stopped to check it out. When the man opened the door the officer smelled alcohol and requested a breathalyzer test--the man refused. The policeman consequently arrested the man who was later convicted of DUI.

"Operating" a Motor Vehicle

Impossible you say? This is not, unfortunately, an isolated case. State laws differ widely from state to state, however the issue arises out of the vastly different views of what it means to be "operating" a vehicle or having "physical control" of the vehicle. In some states simply having the keys in the ignition means you are legally operating the vehicle, while in other states you only need to be sitting in the driver's seat to be accused of operating the vehicle or being in physical control of it. The term "physical control" has been stretched to include the possibility that if a vehicle is simply available to an intoxicated person it could be put into service, regardless of intent. Courts have held that the intoxicated person could, reasonably, "make the vehicle a source of danger." 

Mixed Message?

The problem with this rationale is the message it sends to potential drunk drivers, leaving the bar at 2:00 a.m. Suppose you are alone, intoxicated and with no alternate means of transportation--do you sit in your car and wait for the police to show up and arrest you for DUI, or do you risk the drive home, knowing that getting caught carries the exact same penalty? It seems the law is punishing people for doing the morally responsible thing and choosing not to endanger the lives of others or themselves. In June of 2010 a New Mexico Supreme Court overturned a conviction of DUI without driving, stating that the law discourages people from sleeping off a night of drinking in their vehicles. If you have been charged with DUI and you were not actually driving your vehicle, retain the services of an experienced attorney immediately, or you risk losing your license, stiff fines, and probation as well as jail time in some states.