Drinking & Driving: What to do to be Safe and to Avoid Problems With The Law

While alcohol tolerance varies among individuals and can be affected by numerous factors, the table above is an indicator of a person’s blood-alcohol level based on the person’s body weight and the number of drinks consumed and can be used a general guideline to determine your Blood-Alcohol Concentration (BAC) level.

If you determine that you have had too much to drink or you are too tired to drive, then do not drive until you are safely able to do so. In the meantime, you can rest or sleep off the alcohol. However, if you decide to pull over and sleep, you should know that you could still face a drunk driving charge unless you make sure that you have taken the steps and precautions outlined below.

Courts have convicted persons who have stopped their vehicles in order to sleep off the alcohol. The way that some Judges determine whether someone is guilty of the drunk driving charges is by examining whether the defendant was in “actual physical control” of an automobile. A person is in “actual physical control” of an automobile, for purposes of the statute governing offenses relating to driving while intoxicated, if the person is presently exercising or is imminently likely to exercise restraining or directing influence over a motor vehicle while in an intoxicated condition.

The definition of “actual physical control” cannot cover all of the factual situations that present themselves. What constitutes “actual physical control” will ultimately depend on the facts of each case.

When deciding whether a defendant has “actual physical control” of the automobile, some courts have evaluated six (6) factors, in order to determine whether the defendant is guilty of the alcohol related driving offenses. These six (6) factors are identified below and are the specific precautions you should take when you pull over to rest in your automobile after you have consumed alcohol so that you are not charged:

whether or not the vehicle’s engine is running, or the ignition is on;
where, and in what position, the person is found in the vehicle;
whether the person is awake or asleep;
where the vehicle’s ignition key is located;
whether the vehicle’s headlights are on;
whether the vehicle is located in the roadway or is legally parked.
While one factor alone will not determine whether the person was in “actual physical control” of the vehicle, each factor must be examined with the question of whether the person was, at that moment or soon to be, exercising control over the vehicle or whether the person was only using the vehicle as a stationary shelter to sleep off the alcohol.

In Court, the judge or jury must examine the evidence of what the person was doing or had done, and whether those actions posed an imminent threat to the public. In order to not be found guilty, reasonable doubt must exist as to whether the person, who was found asleep in the automobile, had “actual physical control” of the automobile.

The one factor, which the courts give substantial weight to, is the first factor: whether there is evidence that the person started, or attempted to start, the vehicle’s engine. Therefore it is critical that when you pull over to rest, before you get too comfortable and fall asleep in the vehicle, you should turn off the engine and take the keys out of the ignition. Do not start the engine to run the radio, air conditioning, or heater because the courts interpret starting the vehicle as actually driving it without doing so and will decide that you were in “actual physical control” of the vehicle.

Since what constitutes “actual physical control” depends on the facts of each case, the other factors may impact a court’s determination on this point. For example, if a police officer found a person asleep on the back seat of the vehicle, even if the engine is running, that person may not be found to be in “actual physical control.” However, because the judge can look at the last factor, that is, whether the vehicle was located in the roadway or was legally parked, the finding of guilt or innocence in our example could change. The location of the vehicle could be a determinative factor because if the vehicle was stopped in the roadway or illegally parked, that person is obligated by law to move the vehicle and, because of this obligation, could be deemed to be in “actual physical control” even if he or she was physically located in the back of the vehicle.

The courts’ primary focus for determining whether a person has “actual physical control” of the automobile will be whether the person was merely using the vehicle as a stationary shelter or whether it can be reasonably assumed that the person, while under the influence, would jeopardize the public’s safety by exercising some measure of control over the vehicle.

Direct evidence is not required in order to convict you. Circumstantial evidence, which is merely a fact that can be used to infer another fact, is enough to convict you for driving while intoxicated. For example, in one case, a defendant was found behind the wheel of his vehicle on a private driveway with the headlights on, motor running, with a partially consumed can of beer between his legs and two other empty cans in the backseat. The trooper did not observe him drive, he came to the scene because of a citizen’s complaint of a suspicious vehicle. From this, the Court made a reasonable inference that the driver had been observed driving in some sort of erratic fashion on the public highway. In another case, the judge found that the defendant was “driving” his car while under influence of alcohol even though the defendant was discovered asleep or passed out in the passenger side of a stopped car, with the windows up and the motor off, because it was established that the car key was in the ignition in the “on” position, with the alternator/battery light on. The judge came to this conclusion because the gear selector was in the “Drive” position and the engine was warm to touch, even though the police officer never observed the car move.

An excellent court case on this topic is the Court of Appeals of Maryland case entitled Boyce Cornelius Atkinson v. State of Maryland, 331 Md. 199.

Another safety tip, which is frequently overlooked, is to take a cab, bus or other means of public transportation. I advise my clients to keep hidden in their wallet, money for transportation so that they do not drive if they have consumed alcohol. It is inexpensive insurance against drunk driving charges and well worth it.

It is also wise to decide prior to going out and consuming alcohol, that you will not drive and to make plans beforehand to have a Designated Driver. It is important to decide in advance, who will refrain from drinking alcohol and be the Designated Driver.

Call me at 410-446-6644 or complete the Free Attorney Consultation box on this page to discuss your case at no charge and to fully protect your interests.