Can I Get a DUI Sleeping in a Car?

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

In a word, Yes

All that is required for the State to obtain a Driving Under the Influence conviction is for the prosecutor to prove that you (1) were driving or in actual physical control of a vehicle and that you (2) were under the influence of alcohol or drugs to the extent that your normal faculties were impaired. Florida courts have interpreted “actual physical control” to include instances of sleeping in a vehicle when the vehicle is running or the keys are so accessible that only a flick of the wrist is required to start the car.

As such, as always, don’t drink and drive. However, should one have made the decision to drink and drive and subsequently realized he or she should not be driving, it is always a good idea to get off the road and park in a safe location. But this is where additional precautions need to be taken to avoid a DUI even after you’ve removed yourself from the road.

What to do if you’re sleeping in a car

First, park safely and legally. You don’t want to draw any attention to your vehicle from law enforcement. An illegally parked vehicle may give the officer an excuse to approach your vehicle and/or ask you to move your vehicle. Obviously, any encounter with law enforcement after you’ve been drinking brings with it the possibility of a DUI investigation. You also want to park in a well-lit environment so that unsavory characters are not tempted to take advantage or your sleep to rob or burglarize you or your vehicle. 

Second, and this is the hardest part, remove your keys or key fob from your person. Most folks prefer to sleep in a vehicle with it running so that the air conditioning or heat can be on for a more comfortable environment. However, this puts you in actual physical control of the vehicle. Put your keys in the trunk of the vehicle or someplace outside of the vehicle where you can obtain them after you awake. While you may lose your keys or have to rely on someone bringing your spare to you later, the State will be unable to prove a DUI.

If law enforcement is at my window, do I have to roll it down?

Even if you’ve taken each of the above-referenced precautions, you may still have a cop rapping at your window attempting to rouse you out of your slumber. Assuming that you are parked legally and otherwise not committing a criminal or traffic violation, you can simply acknowledge them through the window, roll back over and continue your slumber. Especially if you’ve been drinking, you do not want to open that window and you are not required to do so.

In State v. Brown, 26 Fla. L. Weekly Supp. 605b (Fla. Brevard Cty. Ct. 2018), Mr. Brown was sleeping in his vehicle, with it running, and a law enforcement officer approached and rapped on his window. Mr. Brown raised his head slightly and rotated his body away from the window. Undeterred, the officer recruited a firetruck to sound its airhorn. Upon the sounding, Mr. Brown rolled down his window and engaged with the officer. The officer smelled the odor of an alcoholic beverage, began a DUI investigation, and subsequently arrested Mr. Brown. 

The trial judge held that the welfare check / investigation was illegal at the point the cop forced Mr. Brown to engage with him by using the airhorn. The court reasoned that any concern for Mr. Brown’s well-being was alleviated when he rolled over. Had there been additional evidence of a potential medical issue (unresponsive to tapping or irregular behavior after tapping), the continued investigation would have been justified.

The point being that you don’t have to engage with law enforcement. However, had Mr. Brown taken the steps outlined above, even had he voluntarily engaged, he still could not have been convicted.

Need Help with Your DUI

Call DUI lawyer Adam Bantner and Hillsborough County law firm The Bantner Firm today to set up your free DUI consultation at 813.397.3965. We’d love to help you out!

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