Written by attorney Andrew Daniel Myers

Stopped for DWI And You Weren't Even Driving?

People have been arrested ... and sometimes convicted, after police arrested them when they were not even driving, and sometimes even sleeping in the vehicle with the car pulled over! Yes, it is "counter-intuitive", but the law in many states is similar to the law in New Hampshire, one of the states in which I'm licensed. One night, just after midnight, in Lebanon, NH, a police officer noticed a car in a club parking lot with its engine running and a man slouched down in the driver's seat. The car was parked legally. But, the officer decided to check on what the man was doing and to see if he was OK. The officer approached the car from behind with a flashlight. As he approached, the driver rolled down the window. The officer immediately detected "signs of intoxication." The man was asked to get out of the car. He flunked field sobriety tests and he was convicted of DWI in the Lebanon District Court. On appeal to the New Hampshire Supreme Court the issue was whether there had been a lawful seizure of the defendant prior to the officer's detection of the signs of intoxication. The court pointed to numerous holdings across the country, holding that when an officer simply approaches a person seated in a parked car this alone does not constitute seizure. So, the conviction was upheld in State v. Licks, decided December 6, 2006. But, that sidesteps the real issue. Doesn't the law punish driving while intoxicated? In the question and the case, there was no driving. The law says no person shall drive while under the influence, or with a blood alcohol level of .08 or over. The actual NH law has been revised since our next case, but the point is still valid. The key is the legal definition of the word drive. "Drive ... shall mean to operate or be in actual physical control of a motor vehicle, OHRV, or snowmobile." RSA 259:24. So, how could they convict a man who Claremont police found sleeping in the driver's seat of his car in a Wal-Mart parking lot? At trial the man said he knew he wasn't capable of driving. He decided to sleep it off. The car was running to keep the heater going. While the man had no intention of driving the car, he did unlock the door, sit in the driver's seat, push in the clutch, move the gear shift to neutral, start the engine and run the heater. He argued that because he was asleep, there was insufficient evidence for the court to find that he was in control of the car and therefore operating under the influence. The court held that to have actual physical control of a vehicle, which by definition constitutes driving, the operator must have the capacity to guide or exercise dominion over the vehicle. In two similar cases, including the Wal-Mart parking lot case, the convictions of sleeping operators were upheld. Evidence of actual physical control is for the jury to decide. And, under the facts and all reasonable inferences, the court held, a rational juror could find that the defendants were in actual physical control of their cars. (State v. Winstead, November, 2003; State v. Willard, June, 1995.) Don't dismiss this as a quirky peculiarity of New Hampshire law. The court borrowed the "actual physical control" analysis from Maryland. And, similar Massachusetts cases include the DWI conviction of a driver who pulled well off to the side of Route 24, left the motor running, and went to sleep.

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