This is a common question that arises in Driving While Intoxicated cases, especially when someone realizes they’ve had too much to drink and instead of attempting to drive home while they are intoxicated or impaired, they sit in their car listening to the radio or fall asleep. This has happened many times to many people and often times the police will approach and arrest the person for DWI. In my opinion it is unfair because the intent of the person who was in the car was not to drive it, but to “sleep it off” in their own car before eventually driving home once they were no longer intoxicated. That is a responsible thing to do, but, as you will see, it’s not always as safe as it may appear.
Unfortunately, the police are all too familiar with this situation and they often take advantage of it to make new arrests for DWI when they can. Even more unfortunately, many of those arrests result in convictions because, under the strict definition of the law, those drivers were actually “operating” their vehicles by inserting their keys into the ignition to start the engine to keep warm in winter or just to listen to the radio.
Sometimes, just having the keys in your possession while you sit behind the drivers wheel is enough to get convicted.
From the police perspective (if there is one – other than they get to make another arrest) they found a motorist behind the wheel with the motor running; they don’t know how the motorist arrived there or in what condition; they don’t want to allow that motorist to drive on the public roads in an intoxicated or impaired condition and, on a personal level, they would rather make an arrest since each arrest means they’re that much closer to a promotion.
From the motorist’s perspective, they realized they had too much to drink before they even attempted to drive home and instead decided to “sleep it off” in their car instead of trying to drive home drunk. In my opinion, that’s the safe and responsible thing to do.
The question is what might a jury conclude? Well, in light of all the negative advertising and negative press Driving While Intoxicated has been getting for the last ten years, most jurors start out with the belief that its better to err on the side of conviction than to allow even one drunk driver to get away with it and possibly kill someone on the roads. If that means someone is wrongly convicted, well at least we’re all a little safer as a result.
Unfortunately, that is not the case, but the majority of jurors have been brainwashed to actually believe that rather than use their logical minds. As a result, many people who were acting responsibly have been convicted of DWI when they should never have even been arrested in the first place. So what’s the answer? The answers are practical, but not perfect.
First, if you expect to go out drinking and you even remotely think you might drink too much and get drunk, bring along a designated driver to drive you home. Make sure that driver doesn’t drink at all that night so that if and when you need him or her, they will be able to drive you home.
Second, if you don’t have a designated driver, then have someone call a cab for you and pay for the trip home. It’s a little more expensive, but at least you’ll get home safely and sleep in your own bed that night, rather than on a wooden bench handcuffed to the wall of a police station.
Third, if neither of the first two suggestions work and you’ve been out drinking and you realize you’ve had too much to drink to drive home, the best thing to do is stay away from your car. Again, leave your car at the bar and grab a ride home with someone else or call a cab to drive you home. Walk home if you must. The last thing you want to do is sleep in your car – especially with the motor running. That makes you an immediate target for the police to approach you and ask for your license and registration. That gives them the opportunity to smell your breath for the bi-products of alcohol. Once they smell ketone or acetone on your breath (they call those smells alcohol on your breath), they will immediately believe they have a good reason to ask you to step out of the vehicle and give you coordination tests and a roadside breath test because by running the engine you are effectively operating the car.
If you fail the roadside breath test, you will be immediately arrested and taken to the local police station or precinct and given an opportunity to take a more formalized breath test. If you refuse to take the breath test, even if a later blood test shows you were not intoxicated, you will still lose your license for at least six months in New York through a Department of Motor Vehicles Administrative proceedings that makes a Kangaroo Court look fair. I’ve seen people who were literally unconscious due to an auto accident lose their license because they were deemed to have refused – because they failed to take the test – and they were completely unconscious at the time of the so-called refusal!
If you do choose to stay in your car due to circumstances beyond your control, then sit in the back seat and do not turn the engine on. In fact, don’t even insert the keys into the ignition. That’s right, sit in the cold if you must, but do not put those keys in the ignition under any circumstances. In fact, it would be a good idea to not have the keys on your person if you are in or near your car. That way, if the police choose to lie about whether the car was being operated when they came upon you (and they have been known to do such things), you may have a chance to prove your innocence by having someone else hold your keys so they can testify at trial they had the only set of keys and that indicates the car could not have been operating. Without operation, you can’t be Driving (operating) While Intoxicated.
In conclusion, the best thing to do is not drink too much, but if you do, get home by other means and pick up your car the next day; or, stay away from your car afterward; or, at least give your keys to someone else to hold for you until you are sober. In other words, it’s easier to avoid a DWI than to beat it once you’re charged with it, so take the easy way home and stay away from your car.