I-Was-Not-Driving Defense for Maryland DUI/DWIs – Not Being in Actual Physical Control of a Vehicle

The Definition of Driving in Maryland in Regards to a DUI/DWI
As happens in cases where a person is found asleep or passed out behind the wheel of a car but later charged with a DUI or DWI, the accused may have a defense that they simply were not driving the vehicle. It is not an offense to be intoxicated or impaired by alcohol and simply present inside a vehicle, but it is an offense if that person is driving the vehicle. So to determine whether someone is in fact driving, instead of just sleeping, the State of Maryland has legally defined driving as being in “actual physical control of a vehicle.”

The Six Factors to Consider Whether Someone is Actually Driving
In the case of Atkinson v. State, 331 Md. 199 (1993), the Maryland Court of Appeals interpreted the definition of “actual physical control of a vehicle” and listed several factors to be used in the determination of whether someone is actually in control at the time. Those factors outlined by the court include:

1) Whether or not the vehicle’s engine is running, or the ignition on
If the engine in running, that indicates the motorist is in control of the vehicle.

2) The position the person is found in the vehicle
If the motorist is in the back seat or passenger seat that would tend to indicate not in control, as opposed to being in the front driver seat. If the person is in the driver’s seat, is the seat reclined (indicating asleep and not in control) or positioned upright in driving position?

3) Whether the person is awake or asleep

4) The location of the car’s ignition key
Is the key in the ignition–even if the engine isn’t turned on–or somewhere else? Courts are interested in how many steps away the person is from putting the vehicle in motion. If the key is already in the ignition and only needs to be turned to start the engine, that is more indicative of control than if the keys are in a pocket, purse, or anywhere else.

5) Whether the vehicle’s headlights are on

6) If the vehicle is located in the roadway or is legally parked
If a car is parked on the roadway that indicates both that the car was recently driven to that spot and also that the car is currently being actively operated by the driver. If the car is parked off the roadway somewhere that strengthens the argument that the motorist was not in physical control of the vehicle at that time.

These are just the factors that the court highlighted, but there may be other facts specific to each individual case that show either that the person was or was not in actual physical control of the vehicle. No single factor alone is determinative–the courts look at the totality of the circumstances and take all factors into consideration before making a decision whether the driver was in actual physical control.

Contact a Maryland DUI/DWI Attorney for Your Case
If you are facing a DUI or DWI, and don’t believe that you were actually driving the vehicle at the time, contact the Law Offices of Christopher L. Peretti today at 301-875-3472. Consultations with our office are always free. We will assess your traffic case in full and look for all potential defenses, including whether you were in actual physical control of the vehicle at the time. At our office you will find an attorney willing to fight for your best interests when it comes to your traffic record and your license.

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