Sleeping It Off In The Car – Charged With A DUI/DWI?

If you have been charged with DUI for ‘sleeping it off’ in your vehicle, you need an attorney that has dealt with this unique fact pattern. The reality is, most people, and many judges, believe that if a person is found sleeping in their car while intoxicated, they are automatically guilty of driving under the influence. Some people think that simply having the keys in the ignition or the motor running is enough for a conviction. That is not necessarily the case. Don’t assume that you are guilty, or accept the advice of someone who has not personally handled one of these difficult cases.


In order to sustain a conviction for DUI, the Commonwealth must present evidence to establish the following:

1. The defendant had consumed a sufficient amount of alcohol to render him “unfit” to safely operate a vehicle:
a. A blood sample of a BAC of 0.08 or above; or
b. A breath test showing an average BAC of 0.08 or above.
2. That the defendant had “operated” or was in “actual physical control” of the vehicle after consuming alcohol.

The requirement of operation or actual physical control is the main issue in a case where someone was found while “sleeping it off.” In order to be convicted “beyond a reasonable doubt” the Commonwealth has to firmly establish these facts. Proof of guilt cannot be based on suspicion of conjecture. Circumstantial evidence is not always enough to prove that a person had driven after drinking.

Secondly, in order for the evidence to be admissible, it must have been properly obtained. The Fourth Amendment to the Constitution protects all citizens from “unreasonable search and seizure,” which includes traffic stops. Prior to initiating a traffic stop, police officers must have had “reasonable suspicion” that a crime or traffic violation has taken place. Many police departments are outfitted with body cameras and vehicle dash cameras. This footage can often determine whether probable cause for your traffic stop was proper.


Since the landmark case of Com. v. Price, it has been clear that merely sitting in a vehicle while intoxicated when an accident has not occurred is insufficient to constitute the crime of DUI. 610 A.2d 488, 490 (Pa.Super.1992). The Price decision created a legal protection for individuals that are found to be “sleeping it off”, by requiring the Commonwealth to establish “at a very minimum, a parked car should be started and running before a finding of actual physical control can be made.” Id.

In 1994, the Superior Court issued a second opinion in the land-mark case of Commonwealth v. Byers, in which the Court held that the defendant was not in actual physical control of the movement of a vehicle when he was discovered “sleeping it off” in the parking lot of a lounge at 3:00 a.m., even though the headlights of the vehicle were on and the engine of his vehicle was running and the engine started. Byers at 471. Examining various public policy considerations behind the addition of the
“actual physical control” language to the DUI statute, the Byers Court offered the following rationale in support of this conclusion:

“The policy behind the drunk driving laws supports this result. The purpose of these laws is to keep intoxicated drivers off of the road and protect the public at large. See Commonwealth v. Kohl, 532 Pa. 152, 167-169, 615 A.2d 308, 316 (1992). The language of “actual physical control” was added in 1982 to broaden the reach of the statute to further protect public safety. Crum, 362 Pa.Super. At 113-115, 523 A.2d at 801. This addition made it easier to reach intoxicated drivers who were on the road and were a threat to public safety, but were not actually moving when the police found them. Id. In the present case, Byers never got onto the road and was not a threat to public safety.”

Com. v. Byers, 650 A.2d 468, 471 (Pa. Super.1994) (emphasis added); see also, Com. v. Wolen, 685 A.2d 1384 (Pa.1996) (expanding the test, as discussed infra).

The Byers Court found it incredible that on one hand the legislature, while attempting to broaden the language of the DUI statute to protect the public and to encourage intoxicated motorists not to drive, intended to penalize the identical motorist for “sleeping it off” and not attempting to drive. Id. The Byers Court then posited the following illogical result if merely starting a vehicle was sufficient to constitute actual physical control:

“The Commonwealth is trying to encourage intoxicated people to ‘sleep it off’ before attempting to drive, yet it wants us to punish Byers for doing just that. This case is only one example of the illogical and inconsistent results we would see if this Court were to adopt a per se rule that found a defendant guilty of drunk driving for merely starting his car. Under such a mechanical application, if Byers had left the bar to call a cab using a cellular phone in his car, and needed to start the car to power the phone, the Commonwealth could charge him with drunk driving. This result would punish an individual for attempting to comply with the law. In light of the foregoing analysis, we hold that a defendant is not in actual physical control of a vehicle merely because the vehicle has been started. In the present case, the Commonwealth did not introduce enough evidence to show actual physical control. Therefore, the evidence is not sufficient to prove the first element of driving under the influence beyond a reasonable doubt. “

Byers, 650 A.2d at 471.

It should be noted that the Pennsylvania Supreme Court case of Commonwealth v. Wolen expanded upon or clarified the Byers holding. 685 A.2d 1384 (Pa. 1996). The Supreme Court summarized the rule as follows:

“With respect to what constitutes “actual physical control” in this Commonwealth? . . is determined based on the totality of the circumstances, including the location of the vehicle, whether the engine was running and whether there was other evidence indicating that the defendant had driven the vehicle at some point prior to the arrival of police on the scene.”

685 A.2d 1384, 1385 (Pa.1996); citing to Byers at 469.

The Supreme Court clarified the rule of law by holding that trial courts should not rely on Byers for the proposition that whether the defendant “poses a risk to public safety” should be a determinative. Com. v. Wolen, 685 A.2d 1384, 1386, n. 4 (Pa. 1996). The only relevant consideration is whether there was some evidence indicating that the defendant had driven the vehicle at some point prior to the police arriving on the scene, i.e.an admission, at witness, or an observation that would indicate that the vehicle was driven (crash, damage, tire marks, location, etc.). Id.


In a case Fenters Ward took to trial, the defendant was ultimately acquitted of all crimes charged. The record clearly demonstrated that the Commonwealth had no evidence to fairly suggest that Defendant had operated the vehicle on the night in question—the fact that the keys were in the ignition and the engine running is not enough under the law.

In that case, the Defendant was sleeping in his car with the engine running, because it was cold on the night of January 1st. At trial, attorney Ward argued that the Defendant, and similar individuals should not be expected to freeze to death. Indeed, the Defendant in this case could have had the car started for several legitimate reasons 1) to power his cell phone in an attempt to call for a cab or a friend to drive him home; or 2) to provide heat to avoid freezing to death.

Attorney Ward argued that while the city of Pittsburgh may have an interest in discouraging individuals from parking sleeping in their vehicles in public parking lots, the Byers and Wolen decisions made clear that the crime of DUI is not directed at that particular behavior, provided that no driving actually occurred.

In determining whether a case falls under Wolen, the location of the vehicle at the time the Defendant is discovered ‘sleeping it off’ is crucial. For instance, if a defendant was discovered two miles away from the nearest location where he could have consumed alcoholic beverages, the inference would be fairly drawn that the defendant operated the vehicle after drinking and before deciding to pull over; or, if there was evidence like tire tracks in the snow, or damage to the vehicle, etc. See Com. v. Young, 2006 PA Super 193, 904 A.2d 947 (2006) (vehicle registered to defendant, and keys to vehicle in his pocket. Location of car indicated it had been driven); Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa.Super.2003) (evidence sufficient: vehicle located on travel lane on public street behind other vehicle involved in accident and driver leaning on driver’ s side door when police arrived) Kelley v. Com., Dep’t of Transp., Bureau of Driver Licensing, No. 2134 C.D. 2008, 2009 WL 9100369, at *3 (Pa. Commw. Ct. July 20, 2009)(Defendant parked in front of a restaurant that serves alcohol, and observed fresh damage to her vehicle consistent with information he had received about her backing into another vehicle. In short, based upon all of the evidence available to [Officer] at the scene, we hold that he had reasonable grounds to believe [Defendant] had exercised actual physical control of her vehicle while she was intoxicated.); See also Commonwealth v. Costa-Hernandez, 802 A.2d 671 (Pa.Super.2002) (discussing “driving” and “operating” a vehicle for purposes of 75 Pa.C.S.A. §§ 1371(a), 1543(b), and 1786(f)).

Finally, attorney Ward raised the case of Commonwealth v. Saunders, wherein the defendant was found sleeping in his car in the parking lot of a CoGo’ s gas station on East Carson Street, Pittsburgh. 691 A.2d 946, 950 (Pa. Super.1997). The Court found that the Commonwealth had made a prima facie case, because based on the location of the vehicle, the inference was fairly drawn that the Defendant had driven there after imbibing alcohol, and did not intend to remain in that location to “sleep it off.” Id.

The Saunders Court held as follows:

“Appellee was intoxicated and behind the wheel of his car in the CoGo’s lot with his car motor running. The CoGo’s lot is restricted to CoGo’s customers and cars are periodically towed from the lot when the operators are using the lot to patronize other establishments. CoGo’s does not sell alcoholic beverages; hence, appellee obtained them elsewhere. Appellee could have obtained the alcoholic beverages from any of the bars, restaurants or private clubs on and around East Carson Street (the closest private club was two and one-half blocks away, the closest bar was one hundred yards away and the closest restaurant was on 10th Street), or he could have obtained and consumed alcoholic beverages before driving into the Southside. Since the CoGo’s lot was only for its customers, and appellee obtained the alcoholic beverages (and most likely consumed them) prior to his physical presence in the CoGo’s lot, we find that the Commonwealth presented evidence to support an inference that appellee drove his car, while intoxicated, to the CoGo’s parking lot. Therefore, the Commonwealth did present, at the habeas corpus hearing, evidence to support an inference of appellee’s actual physical control of his automobile. Id.”

Com. v. Saunders, 691 A.2d 946, 950 (Pa.Super.1997) (emphasis added).

In the case Fenters Ward obtained a dismissal of all charges, the Defendant was parked in a public parking-lot behind the First National Bank on East Carson Street, which is famous for hosting the most licensed alcohol establishment along a one-mile stretch of roadway anywhere in America. It is worth noting that in the Criminal Complaint, Officer Hines stated “[DEFENDANT’S] vehicle was legally parked and “left in the parking spot” following his arrest. Officer Hines admitted on cross examination that there was no evidence that the Defendant had driven. (Preliminary Hearing tr. P. 9, l. 2-16).

Attorney Ward argued that “had Defendant been left undisturbed, he could have legally remained at the First National Bank. Unlike the facts in Saunders, the inference can be drawn, based on the location of the vehicle, that Defendant intended to remain there until an alternate means of transportation became available. Therefore, the Commonwealth’ s contention that the Defendant drove his vehicle that night is nothing more than suspicion and conjecture. Attorney Ward’s request to have the case dismissed was granted after the Commonwealth presented its entire case.

Ultimately, the Court dismissed the crimes of Driving Under the Influence, Driving Without Vehicle Registration, and Driving on a Suspended License. You may view the briefs and court records here. The Defendant had been offered a plea deal of a considerably reduced sentence. However, because of the insufficiency of the evidence, this was a rare instance where a trial was necessary. Fortunately, the Defendant was released with no legal ramifications.

If you are charged with DUI for “sleeping it off” in your vehicle, contact Fenters Ward to prepare your legal defense.

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