Nobody wants an arrest – or charge, or conviction – for driving under the influence (DUI). We go to great lengths to avoid it, from assigning a designated driver to staying sober to calling a rideshare instead. What if these options fall through and you are left alone with your vehicle? You certainly do not want to leave it to chance, so you put your keys in your pocket and decide to “sleep it off” before heading home, which seems like the safe thing to do. Did you know, however, that you can still be arrested for DUI?

A police officer may have reason to believe an individual should be arrested for DUI under a variety of circumstances, and some of these can include being asleep in your vehicle.

Even if this sounds impossible or unreasonable, it is true. Even if your car is not running, is in park, and is not moving, you can still be charged with driving under the influence (DUI). This all has to do with what the law sees as whether you are “in control” of your vehicle according to state law. Under Maryland Transportation Code, a person “may not drive or attempt to drive any vehicle while under the influence of alcohol.”

It is the “attempt to drive” term here that is also important. Police may believe that by virtue of the fact that you are in the vehicle, you are attempting (or did attempt) to drive it. Further, under Maryland Transportation Statute 11-114, the word “drive” means “to drive, operate, move, or be in actual physical control of a vehicle.”

The Maryland Supreme Court examined the term “physical control” in a 1993 case, Atkinson v. State. In this case, the defendant was arrested for DUI after a deputy found him intoxicated and asleep in the front seat of his car, legally parked on the shoulder of the road. His keys were in the ignition, but the engine was off.

In this case, the Court held that certain factors should be used to determine if a driver is in physical control of their vehicle, including whether:

• The vehicle’s engine is running
• The ignition is in the “on” position
• The individual is awake
• The headlights are on
• The vehicle is legally parked

The location of the keys is also important – are they in the ignition, the backseat, the trunk? It also matters where the person is located; if they are in the driver’s seat, the passenger seat, or the backseat. This will all make a difference in whether a person is charged with a DUI/DWI.

Said the Court in the Atkinson decision:

No one factor alone will necessarily be dispositive of whether the defendant was in “actual physical control” of the vehicle. Rather, each must be considered with an eye towards whether there is in fact present or imminent exercise of control over the vehicle or, instead, whether the vehicle is merely being used as a stationary shelter. Courts must in each case examine what the evidence showed the defendant was doing or  had done, and whether these actions posed an imminent threat to the public.

Ultimately, the state was unable to prove whether Atkinson was in actual physical control of his vehicle upon his arrest, and the Court reversed his original DUI conviction.

Can I get a DUI in my own driveway?

It might sound crazy, but you certainly can. Again, if you are sitting in the driver’s seat of your vehicle in a driveway – whether awake or asleep – and law enforcement has reason to believe you are intoxicated, they may arrest you for DUI. Of course, for a conviction, the state will have to prove you were in control of your vehicle, using the factors we discussed above. Still, even if a friend has driven your vehicle home for you because you were intoxicated, ensure you get out of the car and into the house to avoid any misunderstanding with the police.

Avoiding being arrested for a DUI when you’re not driving

It should go without saying that one should never drink and drive, but we will say it anyway. However, if you find yourself in the unfortunate situation where you have had one too many and find yourself needing to “sleep it off,” consider the following:

• If possible, safely pull into the closest private parking lot or, if not available, the shoulder of the road.
• Immediately take the keys out of the ignition and move them away from the dash and your body.
• If you have any alcohol in the vehicle, throw it in the trash or lock it in your trunk.
• Move to the backseat.
• If you can, call for a ride.

Taking these actions can help prevent law enforcement from making the case that you were drinking and driving (or planning on drinking and driving). If police approach you while you are waiting or asleep, you are within your rights to decline any questions and call an attorney.

As the Maryland courts have pointed out, if you were charged with DUI while asleep in your car, no single factor determines the outcome of your case. Every situation is unique and it is vital the court weighs all the facts surrounding your arrest. An experienced attorney can help put together a strong case on your behalf.

At Carey Law Office, DUI defense attorney Joseph Carey understands how to protect and safeguard your rights if you were arrested and charged with driving under the influence. Our team of legal professionals represent clients throughout Anne Arundel County, Calvert County, Prince George’s County, and surrounding areas. To schedule a consultation in our Bowie or Crofton offices, call us today at 301-464-2500 or fill out our contact form.