Page 2 of 2 FirstFirst 12
Results 11 to 17 of 17

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

  1. #11
    I don't have the specific jury instructions for NH in front of me, but officers are trained to take into account the same factors for actual physical control as those listed above. It's the totality of the circumstances, but the keys in ignition/car running is frequently weighted far greater than the others, i.e. there are some cases where car running while sleeping in the passenger/rear seat (with other complicating factors like parked roadside with no way of getting there but to have driven drunk) was considered enough for physical control.

    With the advent of Uber/Lyft, unless in a really remote area there are few circumstances when sleeping in the car really make sense.
    Anything I post is my opinion alone as a private citizen.

  2. #12
    In Mukilteo Washington I am aware of a person being cited while in their driveway working on their car with the key in the ignition..... I don't know of any other circumstances or if it stuck .....or if he was simply charged with an open alcoholic container and vehicle control or DUI.

  3. #13
    Site Supporter
    Join Date
    Jun 2012
    Location
    ABQ
    Quote Originally Posted by DpdG View Post
    I don't have the specific jury instructions for NH in front of me.
    Funny you should mention that... I have always preferred to use the Uniform Jury Instructions vice the statutory language. Just last week had to deal with a rookie (one of those with one years' experience, eleven times over) who could not write a criminal complaint supporting the crimes charged. And as someone who was on the call the report did not match much of what I observed.

    Since the UJIs are the plain language the jury will have to use, it makes sense to include that language in the charging documents and reports...

    Caselaw here says if you are drunk, and pull over to the side of the road, with the keys in the ignition you are trying to comply with the law by not driving under the influence. Would not appy ro a drive through, though.

    pat

  4. #14
    Quote Originally Posted by UNM1136 View Post
    Caselaw here says if you are drunk, and pull over to the side of the road, with the keys in the ignition you are trying to comply with the law by not driving under the influence. Would not appy ro a drive through, though.
    Which brings up a good point: If someone realizes that they are impaired and gets themselves safely off the road, should that good decision be a mitigating factor for their original bad decision to drive while impaired?

  5. #15
    Quote Originally Posted by peterb View Post
    Which brings up a good point: If someone realizes that they are impaired and gets themselves safely off the road, should that good decision be a mitigating factor for their original bad decision to drive while impaired?
    An issue with that is what happens when you think you're "fine" again. You may well still be impaired -- the only thing that lowers BAC is time, and depending upon the amount you drank (often underestimated -- for example, four 20oz beers at a restaurant is a little bit more than a six pack of beer), the amount of food in your stomach (slows absorption, meaning it takes longer for you to reach your peak BAC and start working your way down), and various other factors like body weight and time spent drinking, it's entirely possible to be above that 0.08% line for quite a bit longer than many would realize. In general, most people eliminate at ~0.015-0.020% BAC per hour. If you started your drive out at a 0.15% BAC and assuming you're already on your downslope, you're really gonna need to wait a while.

    That's not to mention that certain impairing effects of alcohol relative to your ability to drive occur at 0.04-0.06% BAC, which is legal to drive at in most states (I think Utah is the only one that's gone down to 0.05%? NHTSA's been pushing that for a few years now.).

    As far as the courts go, it would depend upon whether your state has a physical control/similar law and how it's applied. My state has similar factors to those listed above under case law, but voluntarily pulling over isn't one of them (as I recall, we are actually one of the more harsh states for physical control -- there's case law that allowed for a DUI prosecution where the individual was buying spark plugs at I think an Autozone, had the plugs out but in his pocket. Bike couldn't have started, but it was apparently considered to be readily operable by our Supreme Court). It may or may not be used as a card to play for sympathy from a prosecutor (which is about 70% of DUI defense work in my experience).
    Last edited by ssb; 06-28-2020 at 02:04 PM.

  6. #16
    Modding this sack of shit BehindBlueI's's Avatar
    Join Date
    Mar 2015
    Location
    Midwest
    Quote Originally Posted by peterb View Post
    Which brings up a good point: If someone realizes that they are impaired and gets themselves safely off the road, should that good decision be a mitigating factor for their original bad decision to drive while impaired?
    It can be anything from a "C" misdemeanor to an "4" felony in my state, depending on BAC, if you endangered/injured/killed someone, and your prior history. If you were parked, had no history, and were under .15 it would be a "C" misdemeanor. Same scenario but you're driving, thus endangering people, it would be an "A" misdemeanor.

    C misdemeanor is the lowest level criminal offense with a maximum penalty of 60 days in jail and a maximum fine of $500. Felonies run 1-6, with 1 being the most serious. A level 4 felony is a sentence of 2-12 years (note this does not have to be in custody and can be house arrest, community corrections, etc. ) and up to a $10k fine.
    Sorta around sometimes for some of your shitty mod needs.

  7. #17
    Site Supporter Rex G's Avatar
    Join Date
    Jul 2011
    Location
    SE Texas
    I am not a lawyer. I wore a badge, in Texas, for almost 34 years.

    In Texas:

    If the engine is running, and the vehicle is in gear, the person in the driver’s seat is reasonably presumed to be “operating” the vehicle, even if it is stationary, due to the person being in contact with the brake, or the vehicle’s motion is being impeded by a physical object, such as the vehicle having rolled into a wall/pole/slope/rut/hole/tree/vehicle, etc. The doors being locked, from the inside, adds fuel to the fire of the case.

    If the vehicle is not in gear, or the parking brake is set, a prosecutor is unlikely to accept the case for DWI/DUID.

    I can only speculate what would happen, in the case of a vehicle being in neutral, and otherwise free to roll, with the engine running, while stationary on level ground.
    Retar’d LE. Kinesthetic dufus.

    Don’t tread on volcanos!

User Tag List

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •