It was a great party, but when you get into your car, you realize you drank more than you thought. No worries. You switch on the heat or the AC, crank up your favorite radio station, close your eyes and settle back to sleep it off.
Next thing you know, a cop is banging on your window yelling at you to step out.
As the cop will recite in the litany of cop-ese, you have “bloodshot eyes, slurred speech and emit the odor of alcoholic beverages.” You’re arrested, handcuffed and hauled into the precinct where you’re made to blow up balloons, stand on one foot and walk that wavy-looking yellow line painted on the floor. You’re charged with “operating a motor vehicle while intoxicated.”
Wait a minute! The whole point of sitting in your car was not to drive! Ok, so your blood contains more alcohol than hemoglobin, but you weren’t driving.
Tell that to the judge. Who’ll snap at you that for purposes of drunk driving, “operating a motor vehicle” means sitting in the driver’s seat with the engine running. Or sitting there with the key in the ignition. Or just sitting there with bloodshot eyes, slurred speech and emitting the odor of alcoholic beverages. Or even – we’re not making this up – sleeping while blotto in the back seat of a car parked on the street with no keys anywhere. Because, you see, you might be thinking of driving.
This reasoning dates from an antique decision from the days when the only possible reason for cranking up the Model T was to drive it. Long before air conditioning and subwoofers came along to make cars an alternative habitat.
But even this hoary old case says that turning on the engine has to be for the purpose of putting the car in motion. A detail that escapes many courts, not to mention the cop on the beat. The result is to criminalize indiscriminately both guilty and innocent conduct. Which the Constitution frowns on.
So what to do when you’re too wasted to drive but too old to ask your parents to pick you up? And the cabdriver won’t take you, lest you throw up on his fine upholstery? Sleep on the sidewalk? Whatever. Just don’t go near your car.
Appellate Squawk 
I am guessing that you know these are standard fare. We get lots of these in the trial offices. I have one now. Sleeping while parked is our most common defense to DWI. And it’s a winning theory, at least in Brooklyn.
Sent from my iPhone
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Glad to hear it. We see only the losers on appeal – people pleading guilty to sleeping while parked.
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So, are there cases that grant a motion to dismiss under these circumstances. Had a casewith these identical facts. Took a plea.
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Why not move to dismiss? In our humble opinion, a complaint saying that your client was drunk in a car with the engine running without saying it was for the purpose of moving the car is like saying he had a gun without claiming it’s operable.
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Also, in the decision Appellate Squawk cites, the drunken guy was TRYING to move the car. He had the front wheels turned toward the curb and kept trying to drive forward but the car kept stalling because the wheels were against the curb and he was too drunk to notice.
But is this Miscellaneous case from 1924 seriously the ONLY case they can cite for “driving while parked?” I’m surprised no one has appealed one of these cases.
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In Texas, DUI (as y’all abbreviate it), requires at least circumstantial evidence of recent driving while intoxicated, such as a running motor or a one-car collision with an inanimate object. Sleeping it off in the bed of one’s pick-up truck is just good manners and no crime.
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Yeah, but when the choice is sleeping in a car with the engine off and potentially freezing to death vs. turning the heat on and risking arrest, what is a poor inebriated soul to do?
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Except in the Panhandle, in the Winter; and then just keep a sleeping bag in the cab.
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