Wednesday, December 11, 2013

Passing Out? Make Sure Your Keys Aren't in the Ignition.

There are a lot of common misconceptions and/or myths about the law.  Let me take the next couple moments to dispel a couple or few.  123 go-

1) They didn’t read me my rights!!!!  It probably doesn’t matter.  The cops don’t have to read your Miranda Rights just because they arrest you.  Long story short, they only have to Mirandize you if you are going to be interrogated whilst in custody.  Blame Dragnet for this one.

2) If you put a penny in your mouth, it will beat the breathalyzer!!!  No.  Of course that’s not true.  Don’t be a jackass.

3) It’s illegal to drive without shoes on!!!  Not true, but I can see how one might reasonably believe this as it could be a safety issue.

4) If you’re drunk in a car, make sure the keys are out of the ignition so you don’t get a DUI!!!  Actually, this one holds a lot of weight and is damn near spot on.  And that brings us to the blog post of the day – Wells factor DUIs.

What happens when the police roll up on someone sleeping in a car, assuming the sleeping person is under the influence?  The answer, as it almost always is: It depends.  There are a lot of fact specific questions that need to be asked in order to find out if the Commonwealth can actually prove someone was driving under the influence. 

First things first, we have to define the word “driving” and it does not mean “driving” (doesn’t that sound like some serious lawyer BS?).

“DUI” and ‘Driving Under the Influence” are common terms for a legal charge in Kentucky based on KRS 189A, the statute that governs Operating a Motor Vehicle Under the Influence.  The key word is “operating” and not “driving.”  It is possible to get a DUI when you are not driving.

Now back to our hypothetical situation. 

The police roll up on Frank the Tank, who is passed out in the Red Dragon.  He just took the restrictor plate off and she ain’t exactly street legal, so we’ll keep that on the downlow.  But let’s say Frank is drunk in the old muscle car – and he is completely unconscious. 

With this information, we still don’t have enough to know whether Frank will be convicted of DUI.  Some of the first questions I would have for Frank would be “How did you get there?”  “Were you parked in a legitimate parking spot?  If not, where were you?”  “Was the engine running?” “Was the car in park?” And yes, I would certainly ask “were the keys in the ignition?”

My questioning is based on the Wells factor test that Judges use to determine if there was probable cause for a DUI arrest.  Commonwealth v. Wells is a published Kentucky case that sets forth some things to consider in order to determine whether there was sufficient “operation” of a vehicle.

The Wells factors include: 1) whether the person in the vehicle was asleep or awake; 2) whether or not the motor was running; 3) the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and 4) the intent of the person behind the wheel. Wells v. Commonwealth, 709 S.W.2d 847, 849 (Ky. App. 1986).

One of the beautiful quotes from Wells is “a sleeping person is seldom operating anything” quoting Pomeroy.  But that only takes care of the first Wells factor.  The second factor concerns whether the motor is running.  If it is not running (especially if the keys are out of the ignition) then Frank the Tank passes the second Wells factor.  The next one is a bit tricky.  If Frank is passed out AT at red light, we have a problem.  If he is on the side of the road, that’s a little better but maybe not good.  If Frank is in a parking lot or in his driveway and is legally parked, then GREAT SUCCESS!  we pass the third Wells factor.  Lastly, we look to the intent of the person behind the wheel.  Again, if Frank is unconscious, he likely has formed the mental state to do anything except drool on himself.  The intent to drive is not present.

It should be noted that the factors should be taken as a totality of the circumstances test, meaning the failing or passing of one factor doesn’t necessarily pass or fail Frank the Tank.

That leaves us with the lesson for the day:  If you are going to pass out in a car, you should 1) be in a legal parking spot, 2) make sure the keys aren’t in the ignition, and 3) make it a little easier on your lawyer and pass out in the back seat or passenger seat, instead of the driver’s.

I hope this has cleared up any pass out/Wells DUI questions.  If you still have questions or concerns about DUI in Kentucky, call me – Greg Simms – at 502.473.6464.

My door is always open.

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