Can You Get A DUI For Sleeping Drunk In Your Car?

Filed under: Criminal Law, DUI by Contributor @ May 29, 2013

Imagine this – you leave a party or a bar, knowing full well that you are too intoxicated to drive. Not wanting to commit a crime, you decide to sleep in your car until you are sober, at which point you will drive home. During your sleep, you are interrupted by a police officer tapping his flashlight on your window. Next thing you know, you are arrested for DUI. How can this happen?

First, let’s examine the DUI statute in Pennsylvania:

§ 3802.  Driving under influence of alcohol or controlled substance.
(a)  General impairment.
(1)  An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

In Pennsylvania, the Commonwealth must prove that a person was driving, operating, or in actual physical control of a vehicle while under the influence of alcohol in order to be convicted of DUI. There is no way to drive or operate a vehicle while asleep, so the operative term here is actual physical control. Common sense suggests that merely sleeping in a car is nowhere near actual physical control, but the concept of physical control is vague and police might speculate that you drove drunk to where you were found, intended to drive drunk elsewhere, or could have inadvertantly caused the car to move while drunk and sleeping within the car.

So, what can you do to make sure that this does not happen to you? The safest solution and our recommended course of action is that you should never sleep in your car before or after drinking alcohol. However, if you insist on sleeping in your car, here are some tips that might make it as difficult as possible for the Commonwealth to prove actual physical control:

  • Do not move your car at all, no matter how short the distance
  • Do not turn your car on to heat it up, as this will make the engine warm and give reason for the officer to believe that you were driving
  • Turn headlights, windshield wipers, air conditioning, heat, radio, etc. off
  • Sleep in the back seat. If you must sleep in the front seat, do so in the passenger seat, fully reclined
  • If in the driver’s seat, keep your hands and feet away from the steering wheel and pedals
  • Put your keys in an inconvenient location (trunk, center console, glove compartment)
  • Before you fall asleep, text someone who was with you and tell him or her that you intend to sleep in your car until you are sober

As you read the factors above the foolishness of sleeping in your car should be readily apparent. You could follow all of these suggestions and still be arrested for sleeping before or after drinking in your car, so it bears repeating – don’t do it. Fortunately, there is case law in Pennsylvania establishing that the mere presence of a drunken person near a car is not enough to give rise to a DUI conviction. Commonwealth v. Verdekal and Banner v. Commonwealth Department of Transportation are two cases that an attorney can reference to obtain a “Not Guilty” verdict. If you have been charged with a DUI, contact an experienced Pennsylvania DUI attorney at Fairlie & Lippy today.

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