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Can I Get A DUI If I Am Asleep In My Car?

In Kentucky there is some very good case law which allows for a not guilty verdict if a person is asleep while in the vehicle. I recently won an acquittal* for a driver who was asleep (Commonwealth claimed passed out) behind the wheel while awaiting an accident to clear in front of him. The driver pled guilty to Improper Parking because the vehicle was in park on a state highway. The proseuction is seldom, if ever, going to amend this charge and the only way to be found Not Guilty is to proceed to trial. KRS 189A.010 states that a person shall not operate or be in physical control of a motor vehicle. . . A summary of the pertinent case law follows: Pence v. Commonwealth 825 SW2d 282 (Ky. App., 1991) Defendant was sitting behind the wheel and admitted that he had been operating the vehicle; court found "there is still an absence of proof that the appellant operated his vehicle while intoxicated." Wells v. Commonwealth 709 SW2d 847 (Ky. App., 1986) Defendant found asleep in driver's seat of vehicle parked in parking space in parking lot with engine running but with transmission in neutral and parking brake engaged. ". . . there was no evidence that he had driven or otherwise operated the vehicle while intoxicated to its location. It was also not shown that he planned to operate the vehicle. That inference is negated by the facts that the transmission was in neutral and the parking brake was engaged. Most importantly, he was asleep at the time. 'A person sleeping is seldom operating anything. Pomeroy, supra at 100. The only act clearly demonstrated was that the appellant started the van's engine. When viewed in light of the other circumstances, we do not believe that merely starting the engine in the van was an exercise of actual physical control. . ." People v. Pomeroy, 355 N.W.2d 98 (S. Ct. Mich., 1984) (attached). Case cited by Wells wherein defendant was asleep and slumped over the steering wheel of a car which was parked. Defendant's head was on the horn, standard transmission in neutral, motor and heater were on. Court found that "under any reasonable interpretation of the phrase "operate a vehicle", a person sleeping in a motionless car cannot be held to be presently operating a vehicle while sleeping." The court further noted, "A sleeping person is seldom operating anything." Harris v. Commonwealth 709 SW2d 846(Ky. App., 1986) Defendant drank bottle of whiskey while sitting behind wheel of truck and fell asleep with motor NOT running and turned to the "on" position. "These facts do not show that he exercised any control over his truck while intoxicated. . .we do not find that the appellant was 'operating' his truck. . ." Factors in determining whether one was exercising that degree of actual physical control: (1) whether or not the person in the driver's seat was asleep or awake; (2) whether or not the vehicle's engine was running; (3) the location of the vehicle and any circumstances showing how the vehicle arrived there; and (4) the intent of the person behind the wheel. McCreary v. Commonwealth 2007-CA-94 (Ky. App., 2008). Defendant was found in driver's seat with engine turned off and keys in front pocket. Defendant appeared to have been drinking and refused all FST and breathalyzer. Appeals court overturned conviction stating that refusing to grant the Motion for Directed Verdict was improper. Decision based that that no evidence supports a reasonable inference that McCreary was operating or in physical control of a motor vehicle. Newman v. Stinson 489 SW2d 826 (Ky. App., 1972) Old case in favor of prosecution. Defendant "nearly passed out" behind the steering wheel which had been stopped at street intersection with motor running was in physical control. As you can see from the relevant cases in Kentucky, a person who is asleep does stand a chance of an acquittal on a DUI charge. If you have been charged with DUI, contact Michael Bouldin for a consultation at 859-581-6453 or email at [email protected] * Note: Boone County Kentucky case tried 10/20/2011.

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