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Do I have to DRIVE or be observed DRIVING to be charged with DUI-DWI?

By: William C. Head

In most states, the requirement of being seen on a highway driving is no longer mandatory. Under some states’ DUI-DWI statutes it is illegal to "drive" a vehicle while intoxicated (or while impaired), but under other states’ statutes, merely "operating" a vehicle while intoxicated or while impaired is all that is required.  Some states’ statutes combine the terms in their statutes using disjunctive language and make "driving or operating" the prohibited activity.  The DUI-DWI statutes in a handful of states will also include a criminal prohibition against "attempting to operate" or "attempting to drive" as a prohibited vehicular activity that can lead to a DUI-DWI charge.

In states that follow the Uniform Vehicle Code, the prohibited vehicular activity is even broader. This is called being in "actual physical control" of a vehicle.  In many states this activity is combined in statutory laws disjunctively with one or more other prohibited activities such as "driving" or "operating." 

In a small number of jurisdictions, the prohibited vehicular activity is the "physical control" of a vehicle, as opposed to "actual physical control."  This is the broadest and most far-sweeping prohibition of all. Some DUI-DWI statutes that use the term "drive" or "operate" as the prohibited vehicular activity define the term "driving" or "operating" to include actual physical control of a vehicle.

The central issue in most of our contested cases for DUI drivers sleeping in their vehicle is should a person who parked his or her car being convicted of DUI-DWI? In some states with broad, sweeping laws, a good defense is available only if the person was sleeping inside a parked vehicle that not only was NOT RUNNING, but also had no key available to the person inside the vehicle anywhere within that vehicle so that it was capable of being driven.

Where these facts exist, our attorneys have been able to get such DUI cases dismissed, even for repeat DUI offenders. In many states, where it is illegal under state law for a prosecutor to DROP or REDUCE a DUI-DWI, your drunk driving defense attorney will have to file pretrial motions to try to win your case at court, or possibly take the case to a trial. Arguing that the driver “did the right thing” by not driving has been instrumental in getting many accused DUI drivers acquitted at trial.

Of the terms used to describe a prohibited vehicular activity, the phrase “actual physical control” is very all-encompassing wording for a DUI-DWI statute, and the most inclusive. While some courts use the terms "operate" and "actual physical control" interchangeably, the term "operate" is usually less inclusive than the term "actual physical control," but broader and more inclusive than the term "driving," which is the narrowest and least inclusive of the commonly-used terms. It is possible, for example, to have actual physical control of a vehicle while neither operating nor driving it.  Similarly, it is possible to operate a vehicle without driving it.

The traditional definition of "driving" usually includes a requirement that the vehicle be in motion.  The vehicle's motion, however, need not come from its engine powering the wheels.  Sitting behind the wheel of a coasting vehicle whose engine is not running, or a vehicle being PUSHED by a group of friends may constitute a "driving" of the vehicle, even if the keys are not in the ignition. Similarly, the steering of a vehicle that is being pushed or towed may constitute a "driving" of the vehicle for purposes of a DUI-DWI statute.

The vehicle's motion must be the result of an intentional act of the DUI-DWI defendant, however, and not the result of an accidental or unintentional event.  Thus, the accidental depressing of the vehicle's clutch by an intoxicated but sleeping DWI defendant who was inside a vehicle in New York, causing the vehicle to move, was held not to constitute "driving" of the vehicle for purposes of a DWI statute in that state.

© Copyright 2014. William C. Head, Atlanta, GA. All rights reserved.


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