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Can you get a DUI without driving? Though it seems an oxymoron, the answer is yes. You'd be surprised how many drivers don't realize it could happen.

Consider the Florida man whose roommate objected to his choice of late-night music, so he took his tunes outside to listen to in his car. That turned out to be a big mistake. He was arrested on suspicion of DUI after deputies knocked at his window and decided to conduct a field sobriety test, which he failed.

Or the case of a North Carolina woman who was arrested at a fast-food joint after she was found asleep behind the wheel with the engine running. Or the New Jersey camper who was found passed out in the back of his pickup at a campsite and charged with DUI. Or farther afield, the Alaska man who was stuck in a snowdrift and found to have a blood-alcohol ratio more than four times the legal limit, or the Canadian man who was seen pushing his vehicle by deputies and subsequently failed a field sobriety test.

Tales abound across America of drivers who were found asleep in their vehicles, usually incapacitated, and were stunned to find a sheriff's deputy or patrol officer knocking at their door. Usually when confronted with a dazed driver who may quickly become belligerent, a field sobriety test is pretty much automatic. And then, often, it's into handcuffs and a trip to the calaboose. Some drivers, even then, don't realize why they've been busted.

"Actual Physical Control"

Florida lawyer David Haenel has defended many "DUI without driving" cases, including the man with the loud music and the complaining roommate, and says it's a common occurrence. A former state DUI prosecutor of the year who switched sides and now runs the site fightyourdui.com, Haenel says that drivers usually are convicted by the legal precept of "actual physical control" of any vehicle.

In the Florida case, the man had his keys in the ignition to allow his music to play. Some drivers found impaired in their vehicles have turned on their car for heat or AC, Haenel explains. Usually, such drivers are found asleep, but as their keys are in the ignition or on their person, they are found to have "actual physical control" in the eyes of the law.

"A person may be sitting in a vehicle and the keys may be in the ignition. They may have no intention of driving the vehicle, but the car is on," he says. Haenel says such laws are "uniform" across the nation.

Actual physical control, by definition, means the defendant must physically be in or on the vehicle and have the capability to operate the vehicle, regardless of if he or she operated the vehicle at the time.

Haenel says often drivers have no intention of driving, that they've either left a party or drinking establishment, realized that they are impaired and decided to sleep in their cars. Usually they're startled by an officer, who often will realize the driver is impaired and administer a field sobriety test.

If the driver refuses a breath or blood test, the same rules apply as for a regular DUI test. Often, a driver will lose their license for a period and be expected to attend DUI classes. A heavy fine is almost always levied, and a driver will face a hike in their auto insurance.

Haenel says if a driver has been proven to have actual physical control of a vehicle, he will often try to get surveillance video from the surrounding area in a bid to prove that a driver had no intention of driving, that they had been parked in the vehicle for several hours, which could show the driver had no intent to drive.

A simple way to avoid such charges, of course, is to not drink to begin with, or arrange alternate transportation or a designated driver. But Haenel says the best way to avoid an instance of DUI without driving is to "get rid of the car keys."

"They should put them underneath or on the passenger side tire, if they have a release for their trunk, that would be ideal. But most people don't think of that until they're in handcuffs."


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  • 490 Comments
      • 1 Month Ago
      It was labor day evening. We were staying in a motel in a large retail shopping area. It was a dead evening because all the stores closed at 5pm. My mom's funeral was Tuesday. I took my truck out to look for a pizza place. I found one and as I was going inside I noticed a police car across the street. I don't drink at all because of a medical reason. I ordered a pizza and waited inside as it was prepared. When I came out I saw the police car again. I got in my truck and drove on to the US route making a right as the police turned off to my left. I dove down the old road slowing at lights looking for the one that would lead back to the shopping area. I found it and when passing under the interstate I put on a right blinker. Looked up the interstates off ramp and continued on making a second right. On go the cops lights and I pull over just yards from the motel. "Do you know why I pulled you over?" This is the classic first question out of of a cops mouth after License, registration and proof of insurance. "NO". Which is my classic answer. He says, "You almost drove up the interstate the wrong way". Key word here is almost. He than goes on about what I was doing there, was I drinking, and saying he smelled alcohol in my vehicle. I told him I didn't know what he was smelling but it wasn't alcohol". I bet he was hoping to arrest me so he could steal the pizza. He returned my stuff and said, "I didn't need to get a ticket did I want to ask him any questions? ""No". I'd of like to tell him to open the gas cap and smell the alcohol in the gasoline mixture."
      • 1 Month Ago
      I don't drink, and was not driving a parked car… I went out to the car to get a match for a friend. Had to put the key in the ignition (Saab) to turn on the lights. Aurora police came and because I would not do a test, I received a DWAI. Is that a crock of horse manure? Just goes to show you how poorly Ed Tower and his militia run that city.
      • 1 Month Ago
      This is Crazy ! Where is the common sense ? Your in your Car parked in your driveway or private parking lot at your house listening to Music you were NOT driving (Police did not see you Driving) but your charged with Driving while drunk its like having a gun in your holster but your charged with shooting it unlawfully. Police has it too easy too charge you with it without the evidence to support it and you have to prove your innocence in court after the fact THAT is ass backwards. I can see charging someone with a DWI ('DRIVING' while intoxicated) without seeing them Driving ,on the side of a public road passed out behind the wheel with Motor running with skid marks because it gives them supporting evidence that the person was driving at the time Drunk.
      • 1 Month Ago
      Just because its the law doesn't make it right. These are the kinds of things that give cops a bad image, Ive known some really good ones and been given tickets by really good officers doing there job I completely agree that if you are in a parking lot with your car running and in the driver seat u should get a dui but if you are sleeping in anyother part of the vehicle its just common sense you don't want to drive only bad officers give tickets for that.
      • 1 Month Ago
      How the hell can you be in control of a car while sleeping? Some of these cops are just on a power trip. T.T.
      • 1 Month Ago
      ridiculous
      JW
      • 1 Month Ago
      Just more low lying friut for the cops. Are you kidding me. If it's not speeding, dead tags, no inspection sticker, county sticker and the seat belt safety check road blocks at 2 AM these cops are worthless. They know it. Most are corrupt. These guys are nothing more than legalized mafia. What a joke. Never are they there when you need them. See above and they pissed when you don't feed them or give them free drinks. F'em
      • 1 Month Ago
      Check out all the freedoms you believe you have. Somewhere in the background is a law against it. Except for the few dictatorships around our fine planet, the other major countries offer the same freedoms, plus something for your $...not just empty promises. The majors also offer to their citizens, for their tax dollar..health care of... course. That's what civilized countries do for their people. Freedom of speech...as long as it is in agreement with the government. Freedom of assembly...with a permit that is. Somewhere along the path, you have to get a permission or pay a price $ of some kind. There is always a license of some kind creeping around in the background. I can't even own a dog without 'them', wanted my money per year. They claim it's in case your dog gets lost. Well, on the few occassions, over the last 40 years, a dog of mine has only gotten away 3 times. Each time, it was a common citizen, who simply called the number attached to my dog's collar. Sorry, but this hasn't been the greatest nation for years. That's all USA Hype. The bush family and all their cold-hearts, including but not limited to the james gang, that being james baker and associates, who've been running this country since the nixon years, sold out this country years ago. This country is very unhealthy in attitude.
      • 1 Month Ago
      I can't believe the comments people are leaving on this thread. One person says they are glad when cops get killed in the line of duty? Really? I suspect you would all be the first ones saying the police should have done more when the drunk driver crosses the center line and kills someone you know. Do you really think the drunk passed out in the snowbank or the person passed out in their car in the fast food drive through wasn't driving intoxicated to get to that location? These laws are in place for a reason and if it keeps drunk drivers off the roads then that is a good thing. Don't want to get busted for OWI,,,then stay out of your car when you are Intoxicated. Seems pretty simple to me, don't go hating the police for doing their job and protecting the public which they were sworn to do. Also in Wisconsin where I live you can't get arrested for OWI on private property at a single family residence. It is written right into the OWI law. To be arrested on private property it has to be held open to use by the public such as a parking lot of a store or fast food restaurant or be a driveway/parking lot that serves a four or more family apartment/residence.
      • 1 Month Ago
      Bravo to you M1 MM1..... thats the spirit. sounds like you may have some balls rather then a *****!
      chzyrider
      • 1 Month Ago
      Been there. 25 or so years back, I opted one time to sleep in back of my Blazer with the rear seat folded down after a party rather than driving home. It was a warm night, so I didn't need to start the engine for heat or a/c. The party was on a back-country road with very little traffic and I was parked off the side of the road near the house where the party was and no other homes nearby. After a few hours, a county sherriff flashed his light in the window and checked me out. At the itme, he said that it was best that I stayed there rather than driving. Maybe they were more understanding back then. I had those few hours of sleep and was luckily okay by that time. He let me go, but told me to call a friend next time. Nowadays, it's not so simple. Call that friend or a taxi. If you absolutely have to... the trunk is good if your vehicle has a trunk, or an inside release for one. Only place the ignition key in trunk - no direct access, but try to keep the trunk key out of direct reach also just in case. I suggest placing the keys under the hood. Most modern cars have the hood release inside the car and your keys cannot as easily be taken by a potential thief versus placing them on a tire or underneath the car... far too visible.
      • 1 Month Ago
      Hey Fort Lee steve your right cops are crooks plain and simple. The truth is some of them sorry ***** deserve to be shot in the head. Bottom government are crooks to. They pay them selves to much then take the money from things the voters paid for and want. **** the government. When your government prints billions of dollars of paper money daily it equals to get used to chang because he will be big brother soon. How can we pay them 750 billion dollars we owe them. If China calls in the notes which they will eventually we will be bejing,america
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