Sleeping off a couple drinks in the car | Is this considered “operating”?

Recently I have spoken to a number of groups about drunk driving or operating while intoxicated. But that’s a 45 minute talk. So, I was asked to make this video specifically addressing the meaning of the word “OPERATING” in the law OWI.

# You’ve all heard talks about drunk driving. Maybe from judges or members of law enforcement. Those speakers tend to stay in SAFE territory. The answer to almost every question is “just don’t drink and drive” or “just call an Uber driver.”

So, when you’re on your way back from fishing at the Point, and you realize you’ve had one too many, what do you do then? You thought you were ok to drive. But the combination of the sun and the alcohol now has you feeling like you might fall asleep at the wheel. The bad choice has already been made. What do you do then?

# There is no Uber down at the Point. And you’re too far from home to call for a ride. Should you pull over and sleep it off in your vehicle? If so, should you leave the vehicle running? It’s 85 degrees outside and the air is full of mosquitos. Plus, it might not be a safe area to have your windows down or your doors unlocked, while you’re asleep. That’s a hard question.

But these are the real-life questions people ask every day.

Interestingly, this particular question usually comes up in the context of someone trying to do the RIGHT thing.

# Louisiana law makes it illegal to Operate a MV While Intoxicated. Hence the name Operating While Intoxicated. But what is “Operating?” That can best be answered with an example.

I recently had a case where my client came out of a bar after having several drinks. He didn’t want to drive under the influence. So, he decided to sleep it off in his car. He started the car so he could have AC, and went to sleep.

Now, my experience with the police is that they tend to be suspicious. So, when a LEO walks by my client’s vehicle, he immediately assumes my client has been operating while intoxicated, and passed out at the wheel.

Body cam video from the LEO showed that when he opened my client’s door, my client’s feet were on the floor board, and his hands were in his lap. The vehicle was running, but he wasn’t touching any of the controls.

The LEO thought he was operating while intoxicated, and arrested him. The district attorney thought he was operating while intoxicated, and charged him. And the judge was also inclined to think he was operating while intoxicated, and was probably going to convict him.

# But the Louisiana Supreme Court had faced that issue before, and had given a definition of “OPERATING” that helped my client. The Supreme Court said that:

“Operation” = “some control or manipulation over the vehicle, such as steering, backing, or any physical handling of the controls for the purpose of putting the car in motion.”

Remember, my client’s feet were on the floor board, and his hands were in his lap. The vehicle was running, but he wasn’t touching any of the controls.

So, my argument to the court was that he wasn’t handling of the controls for the purpose of putting the car in motion. The judge agreed, and the charges were dismissed.

Keep in mind, the CIRCUMSTANCES supported my client’s story. He was parked at a meter, in a valid and legal parking space. I’ve seen similar cases where someone was sleeping in their vehicle, but the vehicle was on the road, sitting at a stop light for 20 minutes while the light cycled from green to red without the car moving. THOSE circumstances tell a completely different story, a story of someone who PASSED OUT in the MIDDLE of operating while intoxicated.

So, if you want to sleep it off in your car, and you want to have the engine running, and you don’t handle any of the controls in any way for the purpose of putting the car in motion, I think you’re ok.

# Will a LEO who sees you sleeping ALSO think you’re ok? Maybe not. Probably not. So, what do you do? How do you avoid getting arrested?

My advise would be: sit in the passenger seat! Reach over and start the car from the passenger seat, and then go to sleep. THEN, it’s abundantly clear to anyone passing by that you are just sleeping in your vehicle, NOT attempting to operate while intoxicated.

# I’m Kirk Piccione. If you need representation with this or any other legal matter, my contact information is at kirkpiccione.com.

 

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