DRIVING OFFENSES
What does it mean to be “driving?"
In Dukes v. State, 178 Md. App. 38 (2008) the defendant was on trial for driving or attempting to drive while impaired (DWI). His attorney argued that the State had failed to prove that he was in fact “driving”. The facts showed that Dukes was asleep in the driver’s seat; that the car was stopped in the right lane of a public road; that his headlights were on but dim; that the ignition key was on the floor mat under the steering wheel; and that the officer had observed the vehicle in the same spot half an hour earlier.
The Court looked at the legal meaning of “drive” as “to drive, operate, move, or be in actual physical control of a vehicle.” Merely being in a car while intoxicated, standing alone, is insufficient to establish “driving” under “actual physical control”. The court looks at the following relevant factors in making its determination: a) whether the engine was running; b) position in which the suspect is found; c) whether the person is awake or asleep; d) location of the ignition key; e) whether headlights are on; and f) whether the car is in the roadway or legally parked.
In the instant case the court upheld the conviction. Here the court held that circumstantial evidence permitted an inference that Dukes had actually driven. The State can obtain a conviction by proving either actual physical control without proof of “actual driving” or that the defendant had earlier driven the car in the narrower sense while intoxicated. The fact that the car was in the roadway was critical along with the officer’s testimony that the car was driven to the point where he encountered Dukes.
Compare this decision with Atkinson v. State, 331 Md 199 (1993). This case is known as the “shelter” case because the defendant used his car to “sleep it off”. The defendant was found in the driver’s seat and the keys were in the ignition. But the car was legally parked, the ignition was off, and Atkinson was fast asleep. The court said that the primary focus of the inquiry is whether the person is merely using the vehicle as a stationary shelter or whether it is reasonable to assume that the person will, while under the influence, jeopardize the public by exercising some measure of control over the vehicle. The court found that there was a reasonable doubt that Atkinson was in “actual physical control” of his vehicle and that he be found not guilty of DWI.
The determinative factor between guilty and not guilty in the above cases is the location of the vehicle. Dukes was stopped in the right lane of a public highway vs. Atkinson that was parked legally.
As you can see the difference between guilty or not guilty can boil down to a couple of facts.
If you are charged with drinking and driving it is important to hire an attorney that is familiar with the case law and the local courts. Sentences in DWI cases vary greatly between judges. Therefore if you are arrested for DWI in Talbot; Dorchester; Wicomico; Worcester; or Somerset Counties, contact me!
