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Drunk Driving Doesn’t Always Involving Driving

| Jul 27, 2020 | Firm News |

There are numerous terms for the criminal charge of driving while impaired by alcohol. Depending on which state you are in, the term could be “driving while intoxicated” (DWI) or “driving under the influence” (DUI) or even “driving while alcohol impaired” (DWAI). Here in Indiana, the most common term is “operating a vehicle while intoxicated,” or OWI. These terms all tend to mean the same thing and can often be used interchangeably.

That being said, there is an important distinction to be made between “driving” and “operating” a vehicle. In Indiana and many other states, operating a vehicle includes being in “actual physical control” of the vehicle, even if it is parked. What this means practically is that if police were discover you intoxicated and sitting in a parked car, you could potentially be charged with OWI.

Being arrested in such a scenario is largely the discretion of the officer involved, and prosecutors have discretion over whether to charge someone with a crime. But in many cases, the details help determine whether a crime is charged and whether a jury convicts. The important details may include:

  • Where was the car located?
  • Where was the driver located in the car?
  • Was the car running?
  • Were the keys in the ignition?
  • Was the driver awake or asleep?

Most prosecutors might argue that the closer someone was to being able to drive the car, the more culpable he is of being in actual physical control (in the driver’s seat vs. in the back seat, for instance). This seems logical enough, but it isn’t actually rational in all cases.

Consider the following scenario. You attend a house party in the middle of winter. You have a few too many drinks and determine that you are not safe to drive home. You decide to sleep it off in your car because you have nowhere else to go. You turn on your car for heat, although you have no intention of driving. An officer later finds you parked on the street, sleeping in your running car.

You could be charged with OWI, even though you made the responsible choice. The fact that the car was running and you were in the driver’s seat are used as evidence that you intended to drive. It’s plain to see that “actual physical control” can be a slippery slope that gives officers and prosecutors too much discretion to interpret a limited set of observed facts.

If you have been charged with OWI (whether you were driving or not), you can’t afford to be passive in your own defense. Instead, contact the experienced attorneys at Kammen & Moudy to learn more about your rights and legal options.