Is Sleeping While Intoxicated a Crime?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 4, 2015

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Sleeping Guy in CarYou go to a bar with some friends after work and have a few drinks. Maybe you stay for another drink after your friends leave. When you walk out of the bar, you stumble a bit. Realizing that you might be too drunk to drive, you look for a taxi but cannot find one. Instead of putting yourself and others at risk by driving home, you decide to sleep it off inside the car that you parked on the street outside the bar. But the night is cold, so first you start the engine and turn on the heater, leaving the transmission in Park. Then you climb into the back seat for a nap. Have you committed a crime?

The answer depends on the law of your state, but in most places, the answer is “yes.” Even if you do not drive your car, starting the engine is probably against the law if you are under the influence of alcohol. In some states, “sleeping while intoxicated” can result in a driving under the influence (DUI) arrest even if you did not start the car. When those arrests penalize people for responsible behavior, they are a poor use of the criminal justice system, but the pressure to enhance DUI arrest statistics occasionally results in unfortunate prosecutions of people who posed no actual threat to other drivers.

Driving, Operating, and Controlling a Vehicle

Different states formulate their DUI laws in different ways. The State of Washington, for example, draws a distinction between driving a car and having actual physical control of a car. Driving means setting the car in motion and controlling its movement. Having actual physical control means having the present capability to set the car in motion. Both are illegal if done while under the influence of alcohol.

The Washington Supreme Court concluded that when a driver ran out of gas and remained behind the wheel of his vehicle after pulling partially onto a shoulder, the driver had actual control of his car because he could have walked to a gas station to get more gas. Oddly, under Washington law, if the driver had managed to maneuver the car entirely onto the shoulder and out of the traveled portion of the roadway before the police discovered him, he could not have been convicted of DUI.

The State of Wisconsin makes it illegal to drive or to operate a motor vehicle while under the influence. “Operate” is defined as “the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” Wisconsin court decisions have held that a vehicle can be operated without actually setting it in motion, provided that the driver does something (like starting the car) that is necessary to set it in motion. On the other hand, the Wisconsin Supreme Court recently held that sitting in the driver’s seat, without touching the ignition, steering wheel, accelerator, or any other control, did not constitute operation of the vehicle.

It is not surprising that laws prohibiting operating or having actual physical control of a vehicle while under the influence make it illegal for an intoxicated driver to sit in the driver’s seat with the engine running, even if the driver does not set the car in motion. But what about an intoxicated vehicle owner who climbs into the back seat to take a nap?

Sleeping Drivers

The leading case addressing sleeping drivers arose in Montana. In that case, the police found an intoxicated driver asleep at the wheel. The car was parked, although it was partially in the traffic lane of a public street. The engine was running. While it might have been to the driver’s credit that he pulled over before he went to sleep (or passed out), the driver was convicted of DUI. On appeal, the Montana Supreme Court decided that the driver remained in actual physical control of the vehicle even while sleeping. That decision makes sense, since passing out while driving should not serve as a defense to a DUI charge.

More difficult are cases in which the driver is sleeping in the back seat, where operating the vehicle would not be possible. If the engine is running, the police might suspect that the sleeping occupant started the car (which satisfies laws prohibiting either “operating” or having “actual physical control” while under the influence), but proving that the sleeping occupant started the car might not always be possible. In a state that only prohibits driving or operating under the influence, the backseat sleeper might have a defense. In a state with an “actual physical control” law, the sleeper might be in a tough spot.

Even if the engine is not running, an officer in some states might be entitled to make an arrest on the theory that the backseat occupant was in actual physical control of the vehicle, provided that the occupant had a key to the car. The theory is that the occupant has the ability to wake up and start the car and is therefore violating the law.

Of course, someone who gets drunk inside a bar has the ability to leave the bar and start his or her car, but getting drunk inside a bar isn’t a crime. Should it be a crime to behave responsibly by sleeping in the backseat of your car instead of driving? Probably not, but intoxicated sleeping in the backseat of a car might lead to an arrest in some states. The only sure way to avoid a DUI arrest after drinking too much is to stay out of your car.

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