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What Constitutes Driving In The State of Maryland


During my almost 18 years as an attorney, I have had numerous cases dealing with the issue of whether my client was driving or attempting to drive while impaired or while under the influence of alcohol or drugs (“DUI/DWI”). In Maryland, you can be convicted of a DUI/DWI even if your vehicle is not moving down the road. While it is not a crime for someone to be parked while intoxicated or under the influence, the Maryland Courts look at factors as to whether the driver is in actual physical control of the vehicle at the time of the alleged offense.

The main case in Maryland which lays out the factors as noted above is Atkinson v. State of Maryland. This case originated in the Court of Appeals of Maryland in the early 1990s. The relevant factors are: 1) whether or not the vehicle’s engine is running, or the ignition on; 2) where 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) whether the vehicle’s headlights are on; and 6) whether the vehicle was located in the roadway or is legally parked.

The Court in Atkinson went on to indicate that perhaps the strongest factor is whether there is evidence that the Defendant started or attempted to start the vehicle’s engine. The Court went on to indicate that, once an individual has started the vehicle, he or she has come as close as possible to actually driving without doing so and will generally be in “actual physical control” of the vehicle. Furthermore, other factors may militate against a Court’s determination on this point. For example, a person asleep on the back seat, under a blanket, might not be found in “actual physical control,” even if the engine is running. The location of the vehicle can also be a determinative factor because a person whose vehicle is parked legally may be a factor in the driver’s favor, compared to a vehicle stopped in the roadway, where the driver is obligated by law to move the vehicle, and because of this obligation could more readily be deemed in “actual physical control” than a person lawfully parked on the shoulder or on his or her own property. The Court stated, “in sum, the primary focus of the inquiry is whether the person is merely using the vehicle as a stationary shelter or whether it is reasonable to assume that the person will, while under the influence, jeopardize the public by exercising some measure or control over the vehicle.”

The Court also indicated, “it is important to bear in mind that a Defendant who is not in ‘actual physical control’ of the vehicle at the time of apprehension will not necessarily escape arrest and prosecution for a drunk driving offense.” A person may also be convicted under Maryland Transportation Article 21-902 if it can be determined beyond a reasonable doubt that before being apprehended he or she had actually driven, operated, or moved the vehicle while under the influence.” Lastly, the Court stated, “while we wish to discourage intoxicated individuals from first testing their drunk driving skills before deciding to pull over, this should not prevent us from allowing people to drink to drive, and prudent enough not to try, to seek shelter in their cars within the parameters we have described above.”