Driving Under the Influence – Without Actually Driving

by James Sena, Criminal Attorney

Here’s an unfortunate scenario to avoid: Imagine that you have just left your favorite watering hole and had what you believe were a few too many drinks. Being a responsible person, you get behind the wheel with the intent to sleep it off. You turn on the ignition to run the air conditioner, and then you fall asleep. Your intent is to sleep until you feel safe enough to drive.

Soon, you are awakened by a police officer tapping on your window with a flashlight. The officer asks whether you have been drinking. You tell the officer that you have, but that you haven’t driven and are just sleeping it off in the parking lot.

The officer asks you to turn off the ignition and step out of your vehicle. Once outside the vehicle, the officer has you do a series of standard field sobriety tests and a preliminary breath test, all of which you fail. You again tell the officer, as he places you in handcuffs, that you haven’t driven and were just sleeping it off in the parking lot.

As you are placed under arrest for DUI and riding to the police station you wonder, “What did I do wrong? I wasn’t even driving!”

Control of the Vehicle
Legally, you may be found guilty, despite your sincere lack of intent to drive.

Under Arizona law (A.R.S. § 28-1381), it is unlawful not only for a person to drive while under the influence of intoxicating alcohol, but also to be merely in physical control of a vehicle — driving or not. “Actual physical control” is determined by whether the driver’s current or imminent control of the vehicle presented a real danger to the driver or others at the time.

Factors to be considered might include, but are not limited to:

  • whether the vehicle was running
  • whether the ignition was on
  • where the key was located
  • where and in what position the driver was found in the vehicle
  • whether the person was awake or asleep
  • whether the person was wearing shoes
  • whether the vehicle’s headlights were on
  • where the vehicle was stopped
  • whether the driver voluntarily pulled off the road
  • time of day
  • weather conditions
  • whether the heater or air conditioner was on
  • whether the windows were up or down
  • any other explanation of circumstances shown by the evidence.

Important Tips. Given these factors, if you are going to sleep it off in your vehicle:

  • Take the keys out of the ignition while you are behind the wheel.
  • Better yet, do not sit in the driver’s seat (especially if you are going to run the air conditioner or heater while sleeping it off).

The Limitations of “Sleeping It Off”
Even if you take those precautions, sleeping it off before you take control of the vehicle is probably not the best strategy. Given the amount of time for alcohol to be absorbed by your body (in many cases, more than eight hours), it is best to call a cab or ask someone to drive you home. Even if you sleep for a while and no longer feel intoxicated, your blood alcohol content may still be over the legal limit to drive.

James Sena is a criminal attorney at Fitzgibbons Law Offices PLC in Casa Grande, (520) 426-3824.

DUI & Interacting with Law Enforcement

  • Do not drive while you are under the influence of anything.
  • Never be impolite to a police officer.
  • Keep your conversation with law enforcement to a minimum.
  • Keep your hands visible.
  • Do not answer ANY questions apart from confirming your identification or disclosing the presence of weapons.
  • Exit your vehicle when asked.
  • Politely decline to participate in tests. Do not explain your reasons.
  • Submit to a blood or breath test only after you have been placed under arrest.
  • After you have been released, contact an attorney immediately to discuss your situation.