DUI While Sleeping in the Vehicle

Can you be arrested and convicted of DUI if the police find you asleep in your vehicle? The answer is “it depends.” To make the arrest, the officer has to see evidence establishing probable cause that you were in “actual physical control” of the vehicle.

This typically means the officer must see you seated in the driver’s seat, with the keys either in the ignition or within easy reach from your seated position. For vehicles with a keyless ignition system, the fob must be in the vehicle so that it can be easily started by pressing the start engine button from your seated position.

On the other hand, the officer won’t have probable cause that you were in actual physical control of the vehicle if you were sitting in the passenger seat or backseat. Additionally, the officer won’t have probable cause of actual physical control if you can’t immediately start the vehicle using the keys or fob. In those cases, your attorney can challenge the legality of the arrest and/or sufficiency of the evidence.

However, the fact that you are asleep when the officer observes you is largely irrelevant when establishing probable cause for the arrest. Likewise, the court cannot dismiss the case based on that fact alone.

The possibility of an arrest or conviction is not the only consideration. The prosecutor must also prove the case beyond all reasonable doubt at trial. In cases where the person makes no attempt to drive because they are asleep, the prosecutor might have a more difficult time convincing the jury that you are guilty of DUI.

Jurors often take into consideration that the person wasn’t driving or did the right thing by pulling over to “sleep it off.” A “not guilty” verdict might be more likely when it can be shown: 

• the person didn’t drive to that location while impaired;
• the person pulled over to a safe location with no signs of impaired driving before pulling over; or
• the person had no intention of driving away from that location after waking up.

For example, sometimes people sit in their vehicles without intending to drive. For example, a person might get into their vehicle to stay warm or charge their cell phones. Although that might be enough for an arrest, it would be much harder for a prosecutor to get a conviction with those unusual facts.

For that reason, cases in which the person is found asleep in the vehicle might be reduced to a less serious charge, such as reckless driving. When other problems exist in the case, such as a low BAC level or less than overwhelming indicators of impairment, the prosecutor might be convinced to drop the charges entirely.

Sometimes, the evidence of being asleep in the vehicle might make a conviction more likely. For example, if a person were so drunk that they passed out behind the wheel while driving or sitting in traffic, those facts would make a conviction more likely at trial. The court might also consider those facts aggravating factors that justify a harsher punishment at sentencing.

Attorney for DUI While Sleeping in Florida

If you were arrested for DUI while sleeping, contact an experienced DUI defense attorney at Sammis Law Firm. We can help you request a formal review hearing within 10 days of the arrest at the DHSMV to protect your driving privileges from a 6-18 month administrative suspension.

We can also help you fight the DUI case in court. Our DUI defense attorneys understand how to exploit weaknesses in the prosecutor’s case to increase the chances of dismissal during pre-trial motions or at trial.

We help clients fight DUI charges throughout central Florida. Our main office is in downtown Tampa, FL. Our office in Clearwater in Pinellas County is near the Criminal Justice Center (CJC) courthouse and in the same office complex as the Bureau of Administrative Review (BAR) office. We also have an office in New Port Richey near the West Pasco Judicial Center.

Call 813-250-0500 to discuss your case.

How the DUI Jury Instructions Explain Actual Physical Control

Two jury instructions become especially important in a DUI case involving a person found asleep in the vehicle. The defense can request special jury instructions based on the unique facts of the case or legal issues presented. The standard jury instructions explaining actual physical control provide:

“Actual physical control of a vehicle means the defendant must be physically in [or on] the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.”

The court might include the option of “on a vehicle” which pertains to vehicles such as motorcycles and bicycles.

The defense might request a special instruction if there is evidence that the vehicle was inoperable. The standard DUI jury instructions in Florida related to the “defense of interoperability” provide:

“It is a defense to the charge of Driving under the Influence if the vehicle was inoperable at the time of the alleged offense. However, it is not a defense if the defendant was driving under the influence before the vehicle became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty.

However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the other elements of the charge have been proved beyond a reasonable doubt.”

Read more about DUI actual physical control in Florida.

How to Avoid a DUI Arrest When Sleeping in a Vehicle

As DUI defense attorneys, we are often asked, “how can I avoid a DUI arrest?” When it comes to sleeping in a vehicle, consider the following tips to avoid an arrest for being in actual physical control of a vehicle while under the influence of drugs or alcohol:

• park in a safe location;
• turn the engine off;
• move out of the driver’s seat, preferably to the backseat on the passenger side;
• remove the keys from the vehicle by putting them in the glove box, in the trunk, on top of the vehicle, under the vehicle, or hide them away from the vehicle;
• remove the fob from the vehicle and hide it some distance from the vehicle;
• send a text message to a friend or family member letting them know where you are, that you plan on sleeping in the vehicle, but that you will not resume driving the vehicle when you wake up.

Sometimes, the arresting officer finds the driver and wants to make an arrest, but is unable to find the car keys or fob because they are hidden outside of the vehicle. The officer will have a difficult time making an arrest if he is unable to find the car keys or fob.

This article was last updated on November 30, 2024.