Recently found myself having to make a business phone call late one evening after a quite pleasant if not wine-sodden dinner and, for a variety of reasons, the only convenient, comfortable, and quiet place to do so was from my car (it was parked at a hotel where I was staying, so I certainly had no intention of driving). As I sat there with the engine on (to run the air conditioner), it occurred to me that I might not want to be discovered by a policeman at that point, as he might not believe that I was not planning to drive.
I seem to recall reading similarly about people being arrested when they were “sleeping it off” in their parked car because they could have started driving it while still intoxicated.
How far can DWI stretch based on an “in control of/had the ability to drive the vehicle while loaded?” I assume my idling the car would not have looked great had the gendarmerie come along and my alcohol level proven to be above the limit. What if the car wasn’t started? What if one were just headed to the car with the keys out? If “in control of the vehicle” is the standard, shouldn’t I logically be in trouble if I am ever in possession of my keys while two or more sheets to the wind, given that (theoretically) my impaired judgment could lead me to decide to drive at any given moment?
That is simply a matter of state law and not philosophy. Sitting in the driver’s seat and/or having the keys in the ignition is a common criteria for most states. The reasoning is that police can stop you after you stumbled out of a bar and into your car but before you can hurt anyone. I don’t think you can be charged anywhere in the U.S. if you haven’t actually gotten into your vehicle yet even if you have your keys out. The solution for what you did is to sit in the passenger seat to make a call or sleep it off. In many states, you can also be charged for a DUI on any moving vehicle including a bicycle, riding lawnmower, tractor and some even have charges for power boats. I am not sure about a horse.
When I was 15, my parents forced me to attend a DUI class (I’d been a passenger in an accident in which my friend was driving drunk) and the instructor related some “horror stories” related to the situation you describe, which he claimed had all actually happened. In one, a woman who had had too much to drink decided to “sleep it off” in the back seat of her car, which was parked in the bar parking lot. She was awakened by a cop who arrested her for DUI. In another, a cop followed a bar patron outside to his car (where he was going to retrieve some personal items and then wait for a cab) and arrested him for DUI when he opened the passenger door of his car.
I don’t know whether the anecdotes were true, but the instructor wanted to impress that one could potentially be arrested for DUI simply by being in (or near) a car while in possession of the keys.
A buddy of mine, who is WI state cop, told me that if you are in the driver’s seat with the keys in the ignition, you’d better be sober.
OTOH, there’s the story of my uncle who was a notorious hellion growing up. He got pulled over and knew he was over the legal limit. As soon as he pulled his car to the side of the road, he shut it off, removed the keys and got out of the car. He then casually walked to the back of the car, popped the trunk, pulled out a beer and chugged it down - all right in front of the cop.
The cop made him walk home and have someone else pick up his car, but at least he couldn’t get him for drunk driving.
There was a case in Texas where they waited for patrons in a hotel bar to leave for their rooms and then arrest them for public intoxication. I personally think this crosses the line by a country mile. Arresting someone because they might commit a crime has no legal premise.
A few years back two of my friends were waiting in my parking lot for work to let out (they were picking someone up I think). They were both drinking in the car. A cop approched them and asked what they were doing, they explained that they were just waiting to pick someone up. When he asked about the beers, the driver just told the cop that the keys were in his pocket, and that was that.
From the story I heard, the cop was quite pissed. I doubt he was being any nicer than he had to. He couldn’t prove that my uncle was drunk before he chugged the beer from the trunk.
Of course I heard this story from another uncle (this uncle’s brother - both of them brothers to my dad) who liked to tell stories. This one could be a bit exagerrated.
My Attorney told me (back when he needed to tell me things like this) when I needed to sleep one off to put the keys in the glovebox and close it. And in fact this theory was tested and worked fine.
By the way eating a box of mothballs when you get pulled over messes up the breathalyzer.
That’s correct, but only to a limited extent. The rule of thumb is that a recent drink mucks up the breath reading for about 20 minutes. But that’s why statutes authorising breath tests normally allow the test to be taken within a certain period after the driving occurred (in Canada, it’s two hours). The reading is then deemed to be the blood alcohol level at the time of driving.
Then, in the particular case where the driver drank more alcohol after driving, it is possible to call an expert on alcohol absorbsion by the body to estimate back from the breathalyzer reading to determine what the blood alcohol level would have been, prior to the drink after driving. It’s more complicated, but it can be done.
Another option for the cop might have been an obstruction charge - in the story as given, the driver obviously knew why he was being pulled over and the jeopardy he faced, and was consciously trying to alter the evidence (to wit, his own alcohol blood level) to frustrate the officer in the execution of his duty.
One of my former bosses was in an accident involving a woman running a light and T-boning his truck. The woman got out of her car and appeared to be intoxicated. Before the police arrived the woman walked into a bar at the intersection where the accident happened and ordered a pitcher, which she immediately started chugging. My boss claimed that the police said it couldn’t be proven that she was drunk at the time of the accident so she only got a ticket for running the light. Apparently she didn’t qualify for leaving the scene either. He told me this the next morning and I was inclined to believe him.
By the way, this is apparently known as the Glove Box Defense. State v. Lizotte, 272 N.J. Super. 568, 572, 640 A.2d 876 (Law Div. 1993) One court has voiced skepticism about whether it’s even valid. State v. Snyder, 337 N.J. Super. 59, 766 A.2d 316, 2001 N.J. Super. LEXIS 37 (App.Div. 2001) (Particularly in a case where an accident has occurred and police involvement is likely, New Jersey courts should not be quick to encourage a defense founded upon post-event voluntary ingestion of additional alcohol by a defendant.)
A friend of mine was staying with me and we were up late drinking one night. He had left his cigarettes in his car, and after I ran out, he went out to the car to get them. His car had some kind of wiring fault that wouldn’t let the interior light come on, unless the keys were in the ignition, turned to the accesory mode (engine not running).
A cop saw him stumbling towards the car, get in and pulled over to investigate. He got busted for DUI, as he had the keys in the ignoition. He had ZERO intention of driving and was only retrieving his smokes.
His sister is a lawyer, and managed to “save” his licence, but it cost him nearly $3000yr since then in additional insurance costs.