DUI Technicalities:
When the Law Goes Too Far

Can you be arrested for DUI / DWI in a parked car? Yes. It's actually happened - and more recently than you may think.

Suppose you are at a Fourth of July party, having a great time, drinking more than usual, and the hot sun just makes you want more.

After the party, you stumble into the parking lot, get into your car and realize that you've had too much to drink and should not drive.

No problem.

You decide to just sleep it off in the car before you travel. You lock the doors, throw the keys onto the dashboard, ease the seat back and fall asleep.

Two hours later you are awakened by a uniformed policeman pounding on the car. You roll down your window and he orders you to take a breath test. You blow into the machine and it reads .10. You are arrested for drunk driving! Is this possible? Yes it is.

Case in Point: Banner v. Commonwealth, Department of Transportation, Bureau of Driver Licensing.

In September, 1999, the Pennsylvania Supreme Court issued a ruling in this area. In the case of Banner v. Department of Transportation, a policeman was investigating a suspicious parked car near State Route 130, at 4:30 AM. The officer found Mr. Banner, sleeping in a reclined position in the passenger seat of the car along the roadway. The keys were in the ignition, the engine and lights were turned off.

When the officer tapped on the car window, Mr. Banner awakened and reached for the keys in the ignition. There was no alcohol in the vehicle.

Banner failed a field sobriety test and was arrested for driving under the influence of alcohol. The officer ordered him to take a breath test, and gave him the required warnings, but Banner refused. The Department of Transportation then notified Banner that, as a result of his refusal, his operating privileges would be suspended for one year.

The Pennsylvania Supreme Court ruled that the suspension of operating privileges was not valid. The court asserted that a request for a breath test must be supported by reasonable grounds for the officer to have believed that the individual was operating a vehicle while under the influence of alcohol. Here, there were no such reasonable grounds. The mere presence of an intoxicated person in an automobile is not enough to show that actual physical control over that vehicle.

But in other cases, the court has found that there ARE reasonable grounds for the officer to believe that the individual was operating a vehicle while under the influence.

In determining when a person has actual physical control over the vehicle, such that a person may be charged with drunk driving, the Pennsylvania courts will look at where the person is seated in the vehicle, and whether the automobile engine is running. In cases where the vehicle occupant was found sleeping behind the wheel and the engine was running, the courts have upheld DUI convictions.

Sleeping it off.

If you find yourself in the position where you need to "sleep it off" the wisest course of action is to turn off the ignition and sleep outside of the car, when that's possible. If you must remain inside the car, turn off the engine, move to back seat, put the keys into your pocket.

Ultimately, the wisest decision is to have a designated non-drinking driver so that you may avoid this issue entirely.

The information presented on this web site does not constitute legal advice. No attorney-client relationship has been created. Readers are strongly encouraged to contact the firm for professional advice before making any decision of a legal nature. Family Lawyer Service is licensed in the Commonwealth of Pennsylvania.