Can you be charged with DUI while sleeping in your car in SC?
In some states, the answer is yes you can. Under SC DUI law, however, the state must be able to prove that you were driving while intoxicated – sleeping, listening to the radio, sitting in your car with the heater on, or even being passed out at the wheel do not count.
Can You Get a DUI While Sleeping in Your Car?
If you Google, “can I get a DUI while sleeping in my car,” most of the search results you find are going to say “yes, you can.”
That’s because most of the blog posts you find on the subject are written by attorneys (or their marketing professionals) in other states – not SC. In SC, sleeping is definitely not driving, and the state must prove beyond any reasonable doubt that you were driving as an element of driving under the influence.
Can You Get a DUI While Sleeping in Your Car in SC?
The elements of driving under the influence that the state must prove to get a conviction in SC are:
- You were driving a motor vehicle,
- While under the influence of alcohol or drugs,
- To the extent that your faculties to drive were materially and appreciably impaired.
SC courts have consistently held that this means what it says – if you were not driving the vehicle, you were not DUI.
Sleeping in your vehicle is not driving. Listening to the radio or warming up with the heater is not driving. Turning the ignition key on, although not recommended, is also not driving.
In State v. Graves, the SC Supreme Court clarified that being passed out behind the wheel is also not driving.
When a police officer found Graves asleep, drunk, leaning over the steering wheel, with the engine running and the transmission in gear, and the car started moving when the officer told the defendant to get out of the car, this was not proof that the defendant was driving.
Is There Other Evidence that You Drove the Car While Intoxicated?
This doesn’t mean that every person whose vehicle is not in motion when the police arrive gets their DUI charges dismissed. It’s a matter of proof – if there is evidence that a person was 1) driving 2) while they were intoxicated 3) to the extent that their faculties to drive were materially and appreciably impaired, you could still be convicted of DUI even if you were arrested while sleeping in the car.
This could be evidence like the defendant’s statements that they were driving while drunk, independent witnesses who saw the defendant driving, or an auto accident where the defendant was seen driving.
For example, in State v. Osbourne, the defendant was convicted of DUI when he told police he had been in an auto accident, he admitted he had been drinking before the accident, his BAC was .14, and, when officers found his vehicle (crashed against a stop sign), the hood was still warm indicating that it had been driven recently.
When there is no evidence that the defendant was driving – meaning the vehicle was in motion under the defendant’s control, DUI charges should be dismissed.
The most extreme, right-on-the-line example of this that we have seen was a client in Myrtle Beach whose case was dismissed after they were found passed out behind the wheel in a parking garage, with their car in reverse, resting against the parking garage’s wall, but the client made no admissions of driving and there were no witnesses to say they were driving…
Other State’s DUI Laws – You Might Get Charged with DUI for Sleeping in Your Car
In many other states, the analysis is different because their DUI laws make it a crime to “operate” a motor vehicle while under the influence, and some of those states’ courts have interpreted this to include any manipulation of the vehicle’s functions including turning the ignition key, turning on the radio, or sitting in the vehicle with the heater running.
DUI laws that make it a crime to “operate” while under the influence may include:
- OUI – operating under the influence,
- OVUII – operating a vehicle under the influence of an intoxicant,
- OWI – operating while intoxicated,
- OVI – operating a vehicle under the influence,
- OWVI – operating while visually impaired, and
- OWPD – operating with the presence of drugs.
The SC Supreme Court in State v. Graves pointed out that the SC legislature defined both “operator” and “driver” in SC statutes, they only prohibited driving while intoxicated and not operating while intoxicated.
Driving means the defendant “must have had the vehicle in motion at the time in question:”
The distinction between these terms is material, for it is generally held that the word “drive”, as used in statutes of this kind, usually denotes movement of the vehicle in some direction, whereas the word “operate” has a broader meaning so as to include not only the motion of the vehicle, but also acts which engage the machinery of the vehicle that, alone or in sequence, will set in motion the motive power of the vehicle. Flournoy v. State, 106 Ga. App. 756, 128 S.E. (2d) 528 (1962), Gallagher v. Commonwealth, 205 Va. 666, 139 S.E. (2d) 37 (1964)…
Of the two terms, “driving” is given the stricter construction, and in numerous cases it has been held that to be guilty of driving a vehicle while intoxicated, the defendant must have had the vehicle in motion at the time in question. While in a few cases the term “operating” has been given a similar limited construction, “operating” has been more liberally construed in other cases to include starting the engine or manipulating the mechanical or electrical agencies of a vehicle (footnotes omitted).
What is the remedy if you are charged with DUI while sleeping in your car in SC?
First, any implied consent suspension should be “rescinded” at the administrative hearing and your license should be returned to you because there was no probable cause for driving under the influence, and therefore the officer was not authorized to require you to submit to chemical testing.
Second, your DUI charges should be dismissed 1) by the prosecutor after reviewing the evidence, 2) by the court before the trial begins if the prosecutor does not voluntarily dismiss, or 3) by the court at the directed verdict stage if the state does not establish the elements of DUI – including driving – during the presentation of their case.
DUI Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The Myrtle Beach and Columbia, SC criminal defense lawyers at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC, including driving under the influence charges and implied consent hearings.
We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.
