Challenging Your DUI Arrest – Sleeping it Off

Is it a good defense to DUI if you realize you may be intoxicated, stop your car in safe place, and sleep it off?

First, the bad news. One court has agreed that it is in the public interest to give motorists leeway from prosecution when they act reasonably by sleeping it off rather than try to drive home quickly to avoid law enforcement.

However, the near hysteria with which some courts view any motorist who consumes any amount of alcohol has overruled the reasonable approach. See, for example, where the Court said “Ordinary experience tells us that one in a drunken stupor in the driver’s seat of a vehicle is likely to arouse abruptly, engage the motive power of the vehicle, and roar away imperiling the lives of innocent citizens” No matter that a person is in sufficient control of his/her faculties to make the reasonable choice not to continue driving, and is not in a “drunken stupor”, no matter the lack of evidence that such a person is likely to “roar away”.

The legal inquiry is whether or not a person is “in actual physical control” of a vehicle, at any time or place. (Note, it is not required that the person be driving on a public highway for conviction of DUI, although driving on a “public highway” is required for the State to suspend your license. A conviction for DUI revokes your license. The difference is that a suspended license normally automatically returns after a time, whereas a revoked license does not.)

It has been universally held that merely being asleep in your car does not mean you are not in actual physical control.

If your car is running, if the keys are in the ignition; even if the car is not running, the keys are not in the ignition, but the keys are close at hand, you may well be deemed to be in control of the vehicle for purposes of DUI enforcement.

If the case is reasonably close, an experienced DUI attorney will always challenge whether the defendant was in actual physical control to the judge in a pre-trial motion.

The Good News

The good news is that whether the keys are “close at hand” or whether mere sleeping takes you out of the actual physical control of the vehicle are FACT questions. Assuming it gets that far, FACT questions are the exclusive province of the jury, not the judge. Consequently, a common sense view enters into the picture after all.

The judge gives the jurors a list of instructions to follow. The one for actual physical control reads as follows in Illinois:

23.43 Definition Of Actual Physical Control. The phrase “actual physical control” means that the defendant was in the vehicle and in a position to exercise control over the vehicle by starting the engine and causing the vehicle to move.

You can argue to the jury, “when was the last time any of us drove a vehicle while asleep”? Or simply argue the facts – the defendant was asleep because he did not want to exercise control by starting and driving the vehicle. Does his/her good judgment make you think he/she may not have really been intoxicated to the point that he/she was unable to think and act as an ordinary person? That is the jury instruction for driving while intoxicated.

A seasoned, experienced, and knowledgeable DUI attorney should be able to persuasively make these arguments to the jury.