Driving under the influence of alcohol or drugs is illegal in every state. But what if you get caught drunk behind the wheel of a parked car? It surprises many drivers (especially those who pull over to "sleep it off") to learn that the DUI laws of most states also prohibit drivers from "operating" or being in "actual physical control" of a car while under the influence. In other words, you can get a DUI without actually driving.
In states that don’t require actual driving for a DUI conviction, the prosecution still needs to prove the motorist was operating or in actual physical control of a vehicle. (Learn about all the elements of a DUI that the prosecution has to prove.)
State laws differ, but most states require juries to look at the "totality of the circumstances" to determine whether the drunk motorist was operating or in actual physical control of the vehicle. In other words, the jury is supposed to consider all the surrounding circumstances. These often include the:
location of the driver
location of the car
location of the keys
whether the car’s engine was running, and
whether the driver was awake or asleep.
Basically, the jury is being asked to decide whether the motorist was close enough to being able to set the car in motion that it presented a danger to the public.
A driver’s physical proximity to the vehicle—more specifically, the ignition of the vehicle—is an important consideration in determining whether the driver was operating or in actual physical control. The closer the driver was to being able to start up the car, the more likely the jury is to convict. So, for instance, the chances of conviction are higher for a motorist who was in the driver’s seat than a motorist who was asleep in the backseat.
Car location is another key factor juries consider. If you were parked in your own driveway, you might escape responsibility. But a jury isn’t likely to be sympathetic to a motorist found parked in the middle of a roadway or on a sidewalk downtown. Basically, the car's location gives the jury an indication of whether the person was driving before police showed up and how much of a risk the person posed to the public.
Most cars require keys to start the engine. So, the location of the keys is important for assessing whether the driver was operating or in actual physical control of the vehicle. If the driver didn't have keys readily accessible, a jury might be unwilling to convict. But a driver who had the keys within reach or in the ignition won’t likely fare well with this issue at trial.
Being caught with the car engine running generally hurts a motorist’s chances of beating a DUI charge. With the engine running, the motorist is just a step away from putting the car in gear and driving away. However, other circumstances, including the driver's location, might also come into play here. For example, a motorist who was found asleep in the back seat on a cold night might be able to convince a jury that it was necessary to keep the engine running for heating the interior of the car.
Some states have a bright-line rule that says a driver must be awake to be operating or in actual physical control of a vehicle. But in most states, whether a driver was awake or asleep is just another factor for the jury to consider in looking at the overall situation.
This article gives an overview of state DUI laws. But the laws of each jurisdiction are different. And the facts of a case have everything to do with the outcome. If you’ve been arrested for driving under the influence, get in contact with an experienced DUI lawyer who can explain how the law applies to the facts of your case.