# Drunk Driving: When a drunk person sits in the driver's seat? Or, key in the ignition? Or, car turned on? Or, car put in gear to move? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [January 21, 2022, 5:57pm UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183 "2022-01-21T17:57:15Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 21, 2022, 9:58pm UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/61 "2022-01-21T21:58:50Z")
Dead link. > [@](#): > > # OUPS! > > #### VOUS AVEZ FRAPPÉ UN NID-DE-POULE… > > ##### Retrouvez votre chemin avec une des nouvelles suivantes Not that I’m doubting you - except impaired driving isn’t a Quebec law, it’s the federal Criminal Code which each province enforces: > [@](#): > > **320.14** (1) Everyone commits an offence who > > - (a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug; > [@](#): > > “operate” means > > - (a) in respect of a motor vehicle, to drive it or to have care or control of it; There’s a further definition of the presumption of care or control: > [@](#): > > **320.35** In proceedings in respect of an offence under section 320.14 or 320.15, **if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance** unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion. ---
**Author:** ![Richard\_Pearse](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/richard_pearse/32/13144_2.png) [@Richard\_Pearse](https://boards.straightdope.com/u/Richard_Pearse)\ **Post date:** [January 21, 2022, 11:16pm UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/62 "2022-01-21T23:16:57Z")
> [@Whack-a-Mole](#): > > I’d be curious to see if there was ever a study of this. The number of people who woke-up, still drunk and then drove and caused an accident versus those who avoided an accident because they slept it off I suspect the biggest risk would be waking up in the morning feeling sober and driving home while still legally intoxicated. I’m pretty sure I’ve done that. The problem, even then, is that exactly the same thing can happen if you choose to spend the night at a friend’s. Personally I think the act of driving, ie the vehicle is moving, while intoxicated, is what should be penalised. If that means the odd person “gets away with it” then so be it. ---
**Author:** ![dougrb](https://avatars.discourse-cdn.com/v4/letter/d/76d3ee/32.png) [@dougrb](https://boards.straightdope.com/u/dougrb)\ **Post date:** [January 21, 2022, 11:48pm UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/63 "2022-01-21T23:48:49Z")
> [@Richard\_Pearse](#): > > I suspect the biggest risk would be waking up in the morning feeling sober and driving home while still legally intoxicated. I had a breathalyzer in my vehicle and attempted to drive 8 blocks home at 10am after sleeping roughly 6 hours. I thought I was fine, but I had to walk. ---
**Author:** ![Ann\_Hedonia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ann_hedonia/32/319_2.png) [@Ann\_Hedonia](https://boards.straightdope.com/u/Ann_Hedonia)\ **Post date:** [January 22, 2022, 12:51am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/64 "2022-01-22T00:51:13Z")
> [@Richard\_Pearse](#): > > > [@Whack-a-Mole](#): > > > > I’d be curious to see if there was ever a study of this. The number of people who woke-up, still drunk and then drove and caused an accident versus those who avoided an accident because they slept it off > > I suspect the biggest risk would be waking up in the morning feeling sober and driving home while still legally intoxicated. Or waking up two hours later and deciding to drive home. The police don’t have to assume the drunk guy sleeping in the car is a responsible citizen deciding to sleep it off before driving home. And he frequently may not be, he might just be a guy that drank so much he crawled into the back seat and passed out, he might have every intention of driving home, drunk or not, as soon as he wakes up. The law is what it is, and police don’t have to give you every benefit of the doubt before arresting you.They aren’t required to determine if you were adhering to the spirit of the law if you clearly broke the letter of the law. And, quite frankly, it’s kind of ……privileged to expect that they should do so. These laws, like some of the newer domestic violence laws, were written the way they are for a reason. Quite often the reason is based on high profile incidents and public outrage rather than peer reviewed studies. But that’s the way laws are made. Anyone that doesn’t like these laws can fight them. Go to a public hearing, take the stage right after the young widow with 4 children whose husband was killed by a drunk driver after the cops agreed to let him sleep it off in the parking lot and explain that it’s really inconvenient when you get unexpectedly drunk and you live in a Goldilocks zone of personal responsibility — too responsible to drive drunk but irresponsible enough get drunk without having a ride. I don’t think it will work but stranger things have happened. ---
**Author:** ![dougrb](https://avatars.discourse-cdn.com/v4/letter/d/76d3ee/32.png) [@dougrb](https://boards.straightdope.com/u/dougrb)\ **Post date:** [January 22, 2022, 1:06am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/65 "2022-01-22T01:06:13Z")
> [@Ann\_Hedonia](#): > > They aren’t required to determine if you were adhering to the spirit of the law if you clearly broke the letter of the law. Like the old wives’ tale about getting out of the vehicle and opening a bottle and chugging it in front of the officer. It’s never worked. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 22, 2022, 1:11am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/66 "2022-01-22T01:11:06Z")
> [@Ann\_Hedonia](#): > > The law is what it is, and police don’t have to give you every benefit of the doubt before arresting you. The police can arrest you for future crimes? > [@Ann\_Hedonia](#): > > Go to a public hearing, take the stage right after the young widow with 4 children whose husband was killed by a drunk driver after the cops agreed to let him sleep it off in the parking lot… The problem is, if the person choosing to sleep in the back seat is at as much risk for being busted that person may decide to just drive home on the spot when well and truly drunk. And that person is also a risk to the father of four kids. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [January 22, 2022, 1:13am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/67 "2022-01-22T01:13:03Z")
> [@Whack-a-Mole](#): > > The police can arrest you for future crimes ? No, being in physical control of a vehicle while impaired _ **is** _ the crime (in many places) Whether it should be, or not, is debatable. But it’s not a “future crime” in those jurisdictions. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 22, 2022, 1:19am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/68 "2022-01-22T01:19:18Z")
Seems a future crime. Right now you have keys to your car which is likely within a few hundred feet of you while you sit at your PC and browse the SDMB. The car is in your garage/driveway, it is in your control, you have the keys, it is trivial to make use of it. If you get drunk at home are you guilty of a DUI because you could drive? I’m not trying to be pedantic. I am trying to say I think it is best to let people sleep in their car and sober-up rather than arrest them and prosecute them the same as someone who is driving drunk (or otherwise wasted). If the law busts them the same as the person actually driving then the law nudged people to just try and drive home. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [January 22, 2022, 1:26am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/69 "2022-01-22T01:26:05Z")
In the jurisdictions where I’ve practiced, the standard is “actual physical control” (APC) which is far broader than driving and means a person who is “in (or on) a vehicle with the capacity to operate it”. So, being in the driver’s seat, even if asleep, is sufficient. (This sucks, of course, because people sometimes decide to “sleep it off” because they realize that they shouldn’t be driving home after a night out drinking. That still a DUI). Now, it is a defense if the vehicle is inoperable. So, not having the keys is useful. But you might lose the claim that you “didn’t have your keys” if you just put them in the back seat, or right outside the door on the ground. And key fobs make it even harder to dispute APC, since simply having it in the car confirms that the car can be driven, unless it is otherwise not working. And despite the definition, I’ve had cases where a person is arrested while standing outside their car for DUI. These are considered good cases to defend because we can argue no APC - a person might approach their car, decide they shouldn’t drive it, and so call a friend or an Uber while they wait next to the car, never actually committing the crime. But, remember, those people are seeking a legal defense because they still got arrested. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [January 22, 2022, 1:27am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/70 "2022-01-22T01:27:43Z")
> [@Whack-a-Mole](#): > > If you get drunk at home are you guilty of a DUI because you could drive? The distinguishing fact is whether you get in the car (and not, as many assume, whether you drive it. So, getting in to listen to the radio is still DUI, since intent to drive is not an element of the crime) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 22, 2022, 1:31am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/71 "2022-01-22T01:31:07Z")
On that last point, it depends on the law of each jurisdiction, as the quote from the Canadian Criminal Code establishes. If the accused can show he didn’t get into the driver seat with the intention of setting the car in motion, that’s a defence. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [January 22, 2022, 1:38am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/72 "2022-01-22T01:38:54Z")
> [@Northern\_Piper](#): > > If the accused can show he didn’t get into the driver seat with the intention of setting the car in motion, that’s a defence. Ignorance fought! I was surprised to learn recently that Canada is incredibly strict with allowing people with DUIs to even enter the country, so I’m surprised they are more lenient on this point than in the states. People get arrested for DUI all the time in Florida after they’ve pulled over, decided not to drive, and called somebody to come get them. The cops stop to investigate the car sitting in a parking lot at 2 am, and it leads to a case. It really does suck that people who try to “do the right thing” by getting in their car but taking a nap, or pulling over to sober up, can still get arrested and charged. Practically speaking, though, their decision becomes useful when they are seeking to negotiate a plea to a reduced charged (i.e. in Florida, reckless driving is a lesser included offense to DUI, and a plea option). ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 22, 2022, 1:44am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/73 "2022-01-22T01:44:40Z")
> [@Moriarty](#): > > Canada is incredibly strict with allowing people with DUIs to even enter the country, We’re not “incredibly strict” about impaired driving convictions as a condition of entry. It’s that you can be excluded for a criminal conviction. Same restrictions apply to convictions for other criminal offences unrelated to impaired driving. ---
**Author:** ![madmonk28](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madmonk28/32/20811_2.png) [@madmonk28](https://boards.straightdope.com/u/madmonk28)\ **Post date:** [January 22, 2022, 1:51am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/74 "2022-01-22T01:51:01Z")
In Virginia, it’s sitting in the driver seat with keys in the ignition. I know this because I was once on a jury in which that was an issue. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [January 22, 2022, 1:52am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/75 "2022-01-22T01:52:09Z")
> [@Northern\_Piper](#): > > We’re not “incredibly strict” about impaired driving convictions as a condition of entry. It’s that you can be excluded for a criminal conviction. Same restrictions apply to convictions for other criminal offences unrelated to impaired driving. I certainly defer to your familiarity with your laws, but I had spoken to a guy who was having a hard time entering Canada because of his record (which he was seeking to have expunged). And then I found this > [@](#): > > in 2018, Canada started punishing DUI more severely. As of December 18, 2018, the DUI maximum punishment doubled from 5 years to 10 years in prison. DUI is a hybrid offence in Canada. This means that the government can choose to prosecute it by summary process or by indictment… > > Canadian immigration law treats hybrid offences as indictable (as opposed to summary). If a person is convicted abroad, in or after December 2018 of DUI, Canada treats them as having committed an indictable offence. In theory, anyone who has committed an indictable offence, which has a maximum penalty of ten years or more (as DUI now does), is inadmissible to Canada forever due to serious criminality. [CITE](https://www.cicnews.com/2021/07/entering-canada-with-a-dui-from-the-usa-0718712.html#gs.n5jkl1) The article said it was part of the changes to the law when weed was made legal. > [@](#): > > When attempting to enter Canada with a past driving under the influence (DUI) offence, travellers may have difficulties crossing the border. > > This common situation arises due to Canada’s strict laws on DUI. Canada further strengthened these laws in 2018 when marijuana was legalized. The legalization resulted in tougher punishment for DUI offences. The goal was to stop Canadian citizens from driving impaired. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [January 22, 2022, 1:56am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/76 "2022-01-22T01:56:19Z")
> [@Northern\_Piper](#): > > Same restrictions apply to convictions for other criminal offences unrelated to impaired driving. I don’t mean to sound like I’m disagreeing with you. I recognize that you are correct. But it does seem like Canada considers a DUI to be a more serious offense, and so your typical American mook with a misdemeanor DUI on his record is actually a serious criminal in your country. ---
**Author:** ![Riemann](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/riemann/32/3133_2.png) [@Riemann](https://boards.straightdope.com/u/Riemann)\ **Post date:** [January 22, 2022, 1:58am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/77 "2022-01-22T01:58:50Z")
> [@Ann\_Hedonia](#): > > The law is what it is, and police don’t have to give you every benefit of the doubt before arresting you.They aren’t required to determine if you were adhering to the spirit of the law if you clearly broke the letter of the law. > > And, quite frankly, it’s kind of ……privileged to expect that they should do so. > > These laws, like some of the newer domestic violence laws, were written the way they are for a reason. Quite often the reason is based on high profile incidents and public outrage rather than peer reviewed studies. But that’s the way laws are made. I don’t get this attitude at all. So - the laws might not be evidence-based, they might be counterproductive, but we should just accept that? What’s at stake here is not “justice for drunk drivers”, it’s the optimal outcome for everyone concerned - it’s to minimize drunk driving because it puts everyone at risk. > [@Ann\_Hedonia](#): > > a Goldilocks zone of personal responsibility — too responsible to drive drunk but irresponsible enough get drunk without having a ride. > [@Whack-a-Mole](#): > > if the person choosing to sleep in the back seat is at as much risk for being busted that person may decide to just drive home on the spot when well and truly drunk. This to me is the crux of the matter. On the one hand, as @Ann_Hedonia says, the knowledge that you can be arrested for even being in your car sleeping it off is an incentive to be more responsible in the first place and prearrange a ride home - or just not drink if you have your car with you. On the other hand, as @Whack-a-Mole says, if you have _partially_ screwed up and you’r in that situation, we don’t want to incentivize people to _fully_ screw up and drive their car home because sleeping on the back seat all night in a parking lot means a higher probability of being caught, with equally severe punishment. I don’t think there’s any high principle of law or ethics at stake here. I’d be fine with the law written whatever way produces the best outcomes - including arresting drunks for potential future acts if that’s what works best. But I think it’s an empirical question, I think it hinges on whether there’s some research to back up the way these laws are written, and their implementation. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [January 22, 2022, 2:12am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/78 "2022-01-22T02:12:10Z")
> [@Moriarty](#): > > In the jurisdictions where I’ve practiced, the standard is “actual physical control” (APC) which is far broader than driving and means a person who is “in (or on) a vehicle with the capacity to operate it”. So, being in the driver’s seat, even if asleep, is sufficient. This is why some states have multiple laws on this. OWI and DWI have distinct definitions. I’ve made zillions of OWI arrests where people were passed out in the backseat with the keys in the ignition. Majority of the time it was after they had driven for a bit and then decided they were too drunk to drive. This can be enforced on private property IF the property is open to the general public, like a tavern parking lot. Just because a person is sleeping it off in a bar parking lot doesn’t mean they stumbled out of that particular bar. They could have driven there from somewhere else. It is not the duty of police to determine this. Being intoxicated and in control of the vehicle is all that is required for an arrest. If the person can show during their defense they had not driven it is up to the prosecutor whether or not to continue the charge. The arrest is still made. The reason for this is because there have been cases where police did not make an arrest and later it was shown the person had driven prior and actually killed someone before stopping and trying to sleep it off. Some cops lost their jobs because of this. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [January 22, 2022, 3:17am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/79 "2022-01-22T03:17:37Z")
If the person fell asleep/passed-out next to their car rather than in their car would that be ok? ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [January 22, 2022, 3:37am UTC](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183/80 "2022-01-22T03:37:29Z")
Here’s video of White Sox manager Tony LaRussa being arrested in 2020 after Arizona police found [his car stopped on the side of the road with tire damage, flashers on.](https://www.youtube.com/watch?v=gtNxawzMQlc) > [@Grrr](#): > > How is one sleeping in a car while intoxicated a danger to anyone? LaRussa can answer that, too. In 2007 he was arrested in Florida when police found him asleep at the wheel, with the engine running and the car in Park, _[while at a stoplight.](https://www.chicagotribune.com/sports/white-sox/ct-chicago-white-sox-tony-la-russa-dui-20201201-v2norfknszccnneg7dfxr22c4m-story.html)_ [Previous page](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183.md?page=3) [Next page](https://boards.straightdope.com/t/drunk-driving-when-a-drunk-person-sits-in-the-drivers-seat-or-key-in-the-ignition-or-car-turned-on-or-car-put-in-gear-to-move/958183.md?page=5)