Sleeping It Off:  Yes, You CAN Get A DUI In Your Sleep

 

Coming out of the bar before last call, you stumble in the parking lot and, regretting that second pale ale, you decide to get into your car, lean the seat back, and catnap until you’re sober enough to drive home. You aren’t drinking And Driving - you’re doing the responsible thing. An hour or two of “sleeping it off,” and you’ll be right as rain, right?

 

You wake up to a police flashlight in your face, and even though you never even turned the engine over, you sleep the rest of the night in the drunk tank, charged with at least a misdemeanor DUI. How the heck can this happen?

 

The key notion in this situation is “physical control of a vehicle.” Were you in physical control of the vehicle, which usually means you sitting in the driver’s seat with the keys in the ignition, engine on or off.  But even sleeping in the back seat or keeping the keys in your pocket might not be enough to save you from conviction.  It can be argued that, without much effort, you could be in physical control, and all too often this is enough to twist a DWI conviction to fit your situation.

 

Where Are You, Where Are the Keys

 

Being anywhere near the driver’s seat is a bad idea if you’ve been drinking.  Also do not take out your keys.  If you need to sleep, try to sleep outside the vehicle, keys in pocket.  Sleeping in the back seat is iffy, but it does allow your attorney to make a reasonable argument that you were not in physical control.  It is still much better than being in the front, near the controls.  Make sure the keys are always securely in your pocket, away from the ignition or even the center console, and that the engine always remains off.

 

There have even been convictions upheld when the offender’s car would not start but the keys were in the ignition, so it was reasonable for the court to assume he had planned to drive while intoxicated.

 

Places to be other than your car if you are drunk:

 

  • Riding in a sober friend’s car, as he or she drives you home.  Calling somebody sober to pick you up is the best possible action.
  • If at a bar, go back and call a taxi cab.
  • If at home, go back inside and sober up.  Sleep it off on your own couch.  It’s roomier, and you can watch TV.
  • A ditch.  Sleep in the grass if you have to.  It’s more comfortable than a cell.
  • The nearest motel or hotel you can find.  A $60 room is a lot cheaper than DUI fines and court fees.  If rates are hourly, all the better.

 

 

The Legal Potholes of a Parked-Car DUI


A parked-car DUI is still a DUI.  Depending on the circumstances of the arrest, in particular the precise locations of yourself and the keys, your lawyer has some wiggle room to fend off conviction.  But if it isn’t your first DUI, you will still be charged as a repeat offender.  In most states, that means if this is DUI number 3, it’s a felony charge—even for trying to “sleep it off.”  The cliché goes that road to hell is paved with good intentions.  In the case of most parked-car DUIs, the cliché rings true.

 

If you happened to turn the car on or if you drove half a block before deciding to crawl in the back and sleep, the situation gets even trickier.  A hot engine or hood, tire tracks, or any other obvious evidence of movement—even if the police did not see the car in motion—might also be used as reasonable cause to make the arrest and to “prove” later that you’ve been drinking with a high BAC (blood alcohol concentration). The legality of this kind of arrest is shaky, and often a good defense attorney can argue that a warrantless arrest on such circumstantial evidence isn’t valid.

 

It’s a safer bet, if you are at all intoxicated, just to leave the car alone.  Even if sleeping in the ditch gets you a public drunkenness citation (an unlikely but possible scenario), the fees, fines, and criminal charges are much, much worse for the DUI.  Take the necessary steps to avoid jail, sleep it off someplace safe, and your dreams will be all the sweeter.

 

By Richard Jacobs

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