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But I Was Not “Driving!”


As a Howard County DUI practitioner I have handled countless cases where people have attempted to use their vehicle to sleep off a rough night of drinking and found themselves charged with DUI/DWI. It is of paramount importance to understand that “driving” for purposes of DUI law does not mean “driving” in the classic sense of the word. “Driving,” for legal purposes, is being in “actual physical control” of a vehicle. In this definition, the Maryland Legislature intended to differentiate between those inebriated people who represent no threat to the public because they are only using their vehicles as shelters, and those people who represent an imminent threat to the public by reason of their control of the vehicle. The benchmark Maryland case of Atkinson v. State, 331 Md. 199 (1992), describes six factors for Judges/Juries to consider when determining of one is in “actual physical control” of a vehicle:

1. Whether or not the engine is running or the ignition is on (strongest factor)

2. Whether and in what position the person is found in the vehicle

3. Whether the person is awake or asleep

4. Where the vehicle’s ignition key is located

5. Where the vehicle’s headlights are on

6. Whether the vehicle is located in the roadway or is legally parked

Thus, it is clear from the factors above, that one can be charged and convicted of DUI/DWI in Maryland without ever actually moving his or her vehicle. Getting into a cars driver’s seat, turning on the engine for heat, and falling asleep while drunk technically, legally, exposes one to a charge of driving under the influence or driving while impaired by alcohol. The only sure way to avoid a DUI charge in Maryland, or any state, is to never get behind the wheel of your vehicle, even if you don’t plan to move it, with any alcohol in your system. And if you plan to sleep things off in you’re vehicle, you should make sure your car is off and you’re somewhere other than the drivers seat.