Russell Hebets Aug. 7, 2013

It’s Friday night and you’ve been out at a bar with friends blowing off some steam after a long week. You have several beers, and when your party breaks up you feel like you’re still OK to drive. You get into your car, but after driving a block you realize that driving in your condition is a bad idea. You pull into a parking lot, recline your seat, and close your eyes to sleep it off. While everyone can probably agree that getting behind the wheel after consuming several beers is a bad idea, everyone can also probably agree that getting off the road and sleeping it off is probably a good idea. Here’s the kicker: Not a week goes by when I don’t have a client who come facing DUI charges from when they were asleep in their car after pulling over under much the same circumstances, or when they had pulled over and called a sober friend to come pick them up. Turns out the law doesn’t distinguish between someone driving down the road, and someone parked or asleep in their car.

There have been some cases that have tried to lend more guidance in these situations. Generally, if someone is “able to assert actual physical control” over the vehicle, or if the vehicle is capable of being driven, they are driving. Some factors in making this assessment are where you are in the car (drivers seat? Curled up in the back?), whether the engine is running, whether the keys are in the ignition, and where the car is parked (are you sleeping at a red light?). As you’ve probably notice, there is a lot of room for judgment when making these distinctions. The rule of thumb for most police officers is when in doubt, charge DUI and let the court system sort it out.

Essentially the current state of the law gives every incentive for drunk drivers to continue driving to try to get home, even when they know they are impaired or under the influence of alcohol. If you’re charged with DUI after you have pulled over because you realized you were drunk, you are treated just like the guy next to you who was going 90 mph down the highway after downing a six-pack. Sure, you can tell the judge how you were trying to do the right thing, but under our sentencing laws, you’re still facing the same mandatory minimum sentencing guidelines as everyone else. It sure seems like it would make more sense to treat people who were trying to correct their error in judgment differently and actually give people incentive to do the right thing.