Most people imagine a DUI case involving a moving vehicle with a police officer putting on their sirens and lights, and pulling that driver over. Occasionally a client of mine is not even awake when approached by the police; this is the sleeping operator defense.
Current case law states that a person sleeping in a motionless car cannot be held to be operating, and therefore cannot be convicted of drunk driving. The key to this law is the “motionless” aspect. The court does not end their analysis once they see a sleeping driver, the court is also looking for evidence that the vehicle had previously been in motion or could go into motion in it’s current state. Without present operation, the prosecution has to piece back the past to show the element of operation.
There’s plenty of cases where driver’s pass out at a drive-through or at a red light with their foot on the break. This is evidence that the driver WAS operating before passing out, and at any moment the car can go into motion if their foot leaves the break. The court looks at the danger that the car poses, and if the car can be put into motion because of a significant risk of causing collision or damage to property; operation does not end until the car is returned to a position that no longer poses this risk.
When I evaluate a case with a client who tells me they were passed out at the wheel, we’re looking for where the car was located when the police arrived, and if the ignition is on, and if the car is in park or not. We’re also looking for signs that the prosecution can show that at “some point before” the police arrived to find the sleeping operator, the car was in motion.
In a sleeping operator case I typically file a motion to dismiss for two reasons. One, it creates potential leverage to work out a great deal, and two if we have the right facts, it may lead to a dismissal of charges. We’re looking for facts where the engine is off; that’s ideal, but not typical. If we have a case where the engine is on, and my client is “sleeping it off”, we’re hoping that the car is in park. If we have those facts, we still need to overcome the circumstantial evidence that a prosecutor may present to show prior operation.
It’s important to put together a timeline; the longer the car has been sitting there unbothered by the police, the better for the case. The prosecutor has the burden to show the driver HAD operated that vehicle either impaired or intoxicated by law. As time goes by, the field sobriety tests and BAC readings become a lot less reliable for the prosecution’s case.