Drunk driving -- technicallity to get out of?

[Moirai]

The short answer to the title of thread is this- there is always a way to get out of a DUI. That’s why people lawyer up at a moment’s notice (and if they’re smart, before they open their mouths).

Is it easy? No, nor is it cheap. Is it moral or ethical? YMMV.

[Xgemina]

Can you cite us one of these many cases in which someone sleeping behind the wheel of a parked car was convicted of operating a vehicle while intoxicated?

Of course it depends on how your state statutes define a DUI/DWI. For example, in South Dakota the statute reads:

32-23-1 A person may not drive or be in actual physical control of any vehicle while:

1. There is 0.10 percent or more by weight of alcohol in his blood as shown by chemical analysis of his breath, blood or other bodily substance;
2. Under the influence of an alcoholic beverage;
3. Under the influence of marijuana or any controlled drug or substance to a degree which renders him incapable of safely driving; or
4. Under the combined influence of an alcoholic beverage and marijuana or any controlled drug or substance to a degree which renders him incapable of safely driving.

The key point here is “actual physical control.”

In State v. Hall, 353 NW2d 37, 41-42 n.2 (SD 1984) the SD Supreme Court approved jury instructions defining “actual physical control” as:

A person is in “actual physical control” of a vehicle within the meaning of these instructions when the vehicle is operable and he is in a position to manipulate one or more of the controls of the vehicle that cause it to move or affects its movement in some manner or direction. It means existing or present bodily restraint, directing influence, domination or regulation of the vehicle. It means such control as would enable the defendant to actually operate his vehicle in the usual and ordinary manner. “Actual physical control” of a vehicle results, even though the [vehicle] merely stands motionless, so long as a person keeps the vehicle in restraint or is in a position to regulate its movements.

Hall was found passed out behind the steering wheel in an intersection. The motor and lights were off and the key was in the ignition. Hall was convicted of DUI.

Others that were convicted of DUI when found in a non-moving vehicle:
State v. Kitchens, 498 NW2d 649 (SD 1993) (found in a parking lot passed out behind the wheel. Keys not in the ingnition.)
State v. Remacle, 386 NW2d 38 (SD 1986) (keys in the ignition);
Petersen v. Dept. of Public Safety, 373 NW2d 38 (SD 1985) (keys in the ignition);
State v. DuBray, 298 NW2d 811 (SD 1980) (motor running);
Kirby v. State Dept. of Public Safety, 262 NW2d 49 (SD 1978) (motor running).

Outside of SD:
State v. Peterson, 236 Mont. 247, 769 P2d 1221 (1989) (slumped over on passenger side with feet near pedals and keys in pocket);
City of Fargo v. Theusch, 462 NW2d 162 (ND 1990) (asleep on passenger side, keys in pocket)
Hughes v. State, 535 P2d 1023 (Okla.Crim.App. 1975) (asleep in front seat)

[LemonThrower]

Otto, I had a friend in Florida who was driving home, realized he was drunk, pulled over and slept it off. He put the keys in his pocket. Cops woke him and ticketed him for DUI. He told me the law in Florida is you have to have the keys locked in the trunk where you can’t get them in order to be safe. Don’t know if that’s true. He was a law student at the time.

Re: searches, you can refuse a search but the cops can still look in your windows - plain view exception. They can search without your consent if they have other grounds to arrest you or other grounds to establish probably cause.

The purpose of field sobriety tests is to establish probable cause to require you to take the test. You don’t have to get out of your car and touch your nose, walk a straight line, etc. Cops make you think you do. Technically, you are consenting to this. The tests are often rigged. Once you fail, they require you to take the breath or blood test. If you refuse, a state statute gives the DMV the power to revoke your driving priviledges for a specified time, usually 6-12 mos. for a first offense. If you don’t do the field sobriety tests, you will tick off the cop and you might get cited for speeding, etc or he might claim probable cause to make you take the breath/blood test anyway, based on alcohol on your breath, slurred vision, pupils, admission that you had “just one drink”, erratic driving, etc.

[Otto]

@LemonThrower

The purpose of field sobriety tests is to establish probable cause to require you to take the test.

In Wisconsin and at least some other states there is implied consent to breath and/or blood tests. You may refuse the test but if you refuse you are subject to an automatic license suspension, which I believe stands whether you are convicted of the driving offense or not.

From the sound of some of these examples of being ticketed/arrested for DUI in a parked car, it seems like the conviction is based on the improbability of the car’s having gotten into the location it’s in without its having been driven there by the person in the car. Parked in the middle of an intersection, passed out behind the wheel? What’s the alternative explanation for that?