Being parked vs. driving: what's the difference?

[peterb]

This is a question for the LEOs -- it was inspired by the Brooks case, but I don't want to rehash that. I'm interested in the specific question of how and where the line is drawn between "sitting in a parked vehicle" and "operating a motor vehicle".

I'm interested because when I was young, I often slept in my car on long trips because I didn't want to pay for a hotel. I'd get off the highway, try to find a quiet dark residential street, park, put the seat back, and sleep for a few hours. I never would have considered myself to be operating the vehicle once the key was in my pocket.

So I just looked up my state laws:
Under general definitions:
259:24 Drive. – "Drive," in all its moods and tenses, shall mean to operate or be in actual physical control of a motor vehicle, OHRV, or snowmobile.
Under DWI rules, I found this, which while referring to boats suggests that being parked is not operating:
V. "Operate," when used in relation to a boat, means to drive, paddle, row, or exercise control over any boat unless the boat is at anchor, docked, made fast, or moored.
And the DWI rule starts:
265-A:2 Driving or Operating Under Influence of Drugs or Liquor; Driving or Operating With Excess Alcohol Concentration. –
I. No person shall drive or attempt to drive a vehicle upon any way or operate or attempt to operate an OHRV:

I know rules vary in different jurisdictions. In your world, when is someone in a parked car "operating" or "driving" it? Does it matter if the key is in the ignition or in their pocket? Does it matter if they are in the drivers' seat or another seat? Does it matter if the parking is on the side of a public way or in a parking lot?

Thanks in advance for your time.

[BehindBlueI's]

For my jurisdiction, this has been something that's changed over my career. State code doesn't actually define "operating" so case law does. The standard *used* to be if you were in the driver's seat and the car was running, that was "operating" but I don't recall ever seeing or hearing of a case where the key was in the ignition but the car was off. Case law roughly a decade ago changed that so that there must be some other indication the person actually moved the vehicle. If you found someone parked legally in a parking space with no witnesses that he moved it, etc. then the court said you couldn't really prove he didn't drive there sober then get hammered then get back in the car, or get hammered in the car. Passed out with the car in gear, passed out on a public road, etc. is different. It's an indication the person was moving when they passed out, because how else did they get there and nobody gets drunk while sitting with the car in gear and their foot on the break. Being the sole occupant of the vehicle and a recent receipt from a store that wasn't within walking distance was evidence of driving (say a McDonald's receipt that's 5 minutes old but you're a 15 minute walk from the nearest McD's), that sort of thing. Of course, if the occupant admits to operating it.

So currently, just being in the driver seat with it running and not in gear is no longer considered "operating".

[Erick Gelhaus]

I don't know GA's vehicle code.

However, engine running, in a drive through line, non-responsive because of alcoholic beverage consumption? There is an argument to be made for a violation of our DUI section. In a parking place, engine off, non-responsive because of alcoholic beverage consumption? Not seeing a violation.

[Borderland]

You can be charged in this state if you are in the drivers seat and the keys are in the ignition. If the engine is warm you're toast. We used to get people sleeping it off in a parked vehicle on our private road a lot. I would just pound on the roof and be on my way. I know, pretty sadistic.

[DpdG]

Since you’re quoting NH’s RSAs, I’m assuming NH specific advice might be of service- As a general guideline, keys in the ignition are the generally agreed upon line of demarcation between parked and operating. Having said that, it is not a bright line test, as an officer often still have to articulate the “control of the vehicle” aspect. This often comes into play with newer vehicles that have push button start features.

The easy answer is if one is incapable of safely operating a vehicle and sleeping in the vehicle is the only available option, don’t get in the driver’s seat and/or put the keys somewhere not easily accessible, such as the trunk.

ETA-The boating portion is specifically because being adrift is considered operating. Once the boat is secured via anchoring, mooring, etc. it is functionally parked.

[peterb]

The easy answer is if one is incapable of safely operating a vehicle and sleeping in the vehicle is the only available option, don’t get in the driver’s seat and/or put the keys somewhere not easily accessible, such as the trunk.

Thank you!

It makes sense that if you’re not in the drivers’ seat, you’re not in control of the vehicle.

[whomever]

I have a memory (with the usual disclaimer!) about a case where someone was charged for DUI when found sleeping in the back seat of a car, in the bar parking lot, where the evidence was that he indeed got in the car to sleep w/o moving the car. Alas, my googling for 'dui sleeping in back seat' hasn't found such a case. Apparently either I'm misremembering or it is the exception that proves the rule. I did find a lot of pages from DUI lawyers agreeing with the general thrust of the comments here - that sleeping in the back seat while legally parked is likely to be OK.

FWIW: I did find this case:

https://www.courtlistener.com/opinio...eople-v-davis/

from IL where a conviction was upheld for a guy sleeping in the back seat. In that case, he had pulled off the freeway, so one could reasonably infer he had driven there drunk. The decision, though (to my IANAL reading) didn't seem to base the decision on that, other than a brief mention in the third from last paragraph - it seems to imply they would uphold such a conviction even in the bar parking lot case (specifically, that they would defer to whatever decision the trial court made).

[JohnO]

Back in college (eons ago) a good friend disappeared while friends and I were at a local bar. He had a pretty good load on. When we realized he was nowhere to be found we quickly went looking for him in fear that he was going to try and drive home. We found him attempting to sleep in the back seat of his car. He had the wherewithal to inform us that he knew enough not to get in the front seat under the influence.

I've never researched the local law regarding drivers seat or front seat but that incident has stuck in my head for decades even as a non-drinker.

[Sero Sed Serio]

In Arizona, you can be charged with DUI if you are driving or in actual physical control of a vehicle, what we refer to as APC. I’ve copied the jury instruction for actual physical control that are read to jurors before they deliberate DUI cases:

In determining the defendant was in actual physical control of the vehicle, you should consider the totality of circumstances shown by the evidence and whether the defendant’s current or imminent control of the vehicle presented a real danger to [himself] [herself] or others at the time alleged. Factors to be considered might include, but are not limited to:
1. whether the vehicle was running;
2. whether the ignition was on;
3. where the ignition key was located;
4. where and in what position the driver was found in the vehicle;
5. whether the person was awake or asleep;
6. whether the vehicle’s headlights were on;
7. where the vehicle was stopped;
8. whether the driver had voluntarily pulled off the road;
9. time of day;
10. weather conditions;
11. whether the heater or air conditioner was on;
12. whether the windows were up or down;
13. any explanation of the circumstances shown by the evidence.
This list is not meant to be all-inclusive. It is up to you to examine all the available evidence and weigh its credibility in determining whether the defendant actually posed a threat to the public by the exercise of present or imminent control of the vehicle while impaired.

I’ve done about 25 DUI jury trials, both as a prosecutor and a defense attorney. I think that jurors tend to go with their gut in APC cases more than considering the jury instruction list. In one recent trial where the defendant was asleep in a parking lot with the engine running near downtown Tucson, I literally had a juror finish my sentence when I paused while saying “he wasn’t in...actual physical control.” 20 minutes later they care back with a guilty verdict. Although there was no evidence that he drove, there was also no reasonable explanation for him to have parked in that lot other than to have driven (it was nowhere near the bar he admitted he was at), so even though the majority of the trial was about APC, I believe the jury bypassed all that and just assumed he drove.

In AZ during the summer it might not be not safe to sleep it off without running the AC, so what I would personally do is start the car from the passenger seat, then get into the back seat and sleep there. The only AZ APC charge that I’ve seen where the person wasn’t in the driver’s seat was a case where a drunk passenger jerked the wheel, causing a crash.

[Totem Polar]

DUI law sure can be weird. On a tour bus, since the driver has a commercial license, I can—and have—get hammered on Cab Sauv in the galley seat right behind the driver. I’ve even rode past a highway stop with some poor dude standing on one leg and touching his nose, as we went by and raised our glasses in buzzy tribute to him. Dick move, but that’s the way it was.

But If I’m in the back of a town car, with a friend driving me? No bueno in WA state/open container.

Another one that’s interesting: for years, the Mrs and I had a converted Toyota van with an RV tag on the back; it had snap around curtains and seats that folded into a bed and a dinner table, eurovan-style... but it was still just a mini van. Many is the time that we’d grab a spot in between two big diesel pushers in an RV park, and crank open a bottle of Cab or Brut to wind down from the day’s road weariness. I’m not sure what good being parked in an RV spot would do for us if push came to shove. My best defense was the keys being somewhere not in the ignition, and the fact that the amstaff/boxer mix was usually propped up in the driver’s seat on lookout. I might beat the DUI rap, but the dog would have a hard time.

Anyhoo, carry on, carry on. I’m interested to see where this discussion goes.