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.
How Do DUI Laws Define "Operating" or "Actual Physical Control"?
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 (along with the other elements of a DUI offense). States differ, however, on what kind of proof will satisfy this element of a DUI.
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.
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.
Based on the specific facts of a case, the judge or jury will decide whether the driver was in actual physical control of the vehicle prior to the arrest.
Location of the Vehicle
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 the 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.
Location of the Driver
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.
Location of the Car Keys
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.
"Sleeping-it-Off" or "Not-Driving" DUI Defenses
While in most states the driver being awake or asleep is just one of the factors considered by the judge or jury, some states recognize a "sleep-it-off" defense. This defense—which allows the defendant to avoid a conviction—applies where the driver was in the car merely for the purpose of sleeping off intoxication. The idea is that the law should encourage drivers who are too impaired to drive safely to take measures to stay off the road—even if it means sleeping in the car. The success of this defense can depend on the factors discussed above. For example, a person who was asleep in the driver's seat with keys in hand and the engine running might have less success with this defense than a person who police find asleep in the back seat wrapped in a blanket.
In most states where this defense applies, the person must not have been driving prior to making the decision to sleep it off in the car. However, a few states allow drivers to raise this defense even if they admit to drunk driving before stopping to sleep. Courts in these states have explained that this rule encourages drivers to pull over and sleep it off when they realize they are too intoxicated to safely drive.
Talk to a DUI Attorney
If you've been arrested for driving under the influence, it's important to get legal assistance as soon as possible. The laws of every state are different, so you'll want to have a qualified DUI lawyer who knows how the laws apply to the facts of your case. An experienced DUI attorney can advise you on possible defenses and the best course of action for your situation.