Criminal Law

Can I Get a DUI If I Wasn’t Actually Driving?

By Joshua Egan, Attorney
Read about whether you can get a DUI if you were drunk in your car, but not actually driving.

Updated April 4, 2016

In every state, it’s illegal to drive while under the influence of alcohol or drugs. When most of us think of driving a car, we imagine ourselves behind the wheel with the keys in the ignition and the car in motion. But the laws of most states also prohibit drivers from “operating” or being in “actual physical control” of a vehicle while under the influence. In these states, you can get a DUI without actually driving.

When Is a Driver Operating or in Actual Physical Control of a Vehicle?

In states where you don’t have to actually drive to be convicted of a DUI, the prosecution still must prove beyond a reasonable doubt that you were operating or in physical control of a vehicle. States differ, however, on what kind of proof will satisfy this element of a DUI.

(For more on what the government must establish, see What Does the Prosecution Have to Prove in a DUI Case?)

Some states have "bright-line" rules for determining whether a motorist is operating or in physical control of a vehicle. For example, in Arkansas, a driver generally isn’t in control of a vehicle unless the keys are in the ignition. (Rogers v. State, 94 Ark. App. 47 (2006).) However, most states use a "totality of the circumstances” approach to determine whether a driver was operating or in physical control. With this approach, the judge or jury will consider all relevant factors, which often include:

  • where the car was
  • where the driver was
  • where the car keys were
  • whether the car’s engine was running, and
  • whether the driver was awake or asleep.

Where the Car Was

Vehicle location is often a key factor in determining whether the motorist was operating or in physical control of the vehicle. For instance, a jury is less likely to find that a person who was parked in a driveway was operating or in physical control of the vehicle than a person who was parked in the middle of a roadway or in someone's front lawn. This is because the vehicle’s location more or less shows that the person was driving before police showed up. Also, a judge or jury might be more sympathetic to a motorist who hasn’t left the driveway as opposed to a driver who police find parked on a neighbor's lawn.

Where the Driver Was

The fewer steps a driver needs to take to start up the car, the more likely the driver will be found to have been in physical control of the car. So, for someone who was in the driver’s seat or close to it, the jury might lean toward finding that the driver was in control of the vehicle. The opposite is true if the person was asleep in the backseat or on the ground next to the car.

Where the Car Keys Were

Where the driver’s keys were can be critical in determining whether the driver was in control of the vehicle. Again, the closer a driver is to starting up the car, the more likely the driver is in physical control. Almost all cars require keys to start the engine. So, if a driver doesn't have keys, then a judge or jury often won’t convict. On the other hand, if the keys are within the driver's reach—or worse, already in the ignition—then a driver will probably be found to have been in physical control.

Whether the Car’s Engine Was Running

When the engine is running, the driver is literally a step away from driving. The issue of whether the engine is running, in combination with the driver's location, is extremely important. For example, a person asleep in the driver's seat while the engine is running is more likely in physical control than a person asleep under a blanket in the back seat while the engine is running.

On a related note, some courts have refused to convict a driver when the car’s engine was inoperable and required substantial repair before it could be driven. This is because an intoxicated driver poses no danger in a car that doesn't run.

Whether the Driver Was Awake or Asleep

Some states require that a driver be awake to be in physical control of a car. However, most states reject this bright-line rule because a person can wake up at any time and start driving. The possibility of a sleeping driver waking up makes the location of where the driver is sleeping incredibly important. For example, a person sleeping it off behind the wheel can more easily start driving when awakened than someone sleeping it off in the backseat.

Get in Touch With an Attorney

DUI laws differ by state. And the facts of a given case have everything to do with the outcome. If you’ve been arrested, get in contact with an experienced DUI attorney who can help you understand how a judge or jury might apply the law to the facts of your case.

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