Published on 12/30/2021, 7:10:00 PM

Charged with a DUI while sleeping? Read this article.

If you were charged with a DUI or DWI while sleeping in a vehicle, you may have a very strong defense in your case. Maryland DUI Defendants and Attorneys may be overlooking a very strong defense, the right of a driver to sleep one off. Known in Maryland as the Shelter Rule, this defense was first articulated by the Maryland Court of Appeals in Atkinson v. State 331 Md. 199 (Md. 1993).

Maryland's highest court recognized that a Maryland driver may not be in actual physical control of their vehicle when they are sleeping behind the wheel. Even if the defendant consumes alcohol, they cannot be found guilty of a DUI in Maryland unless they were under the influence of or impaired by alcohol. How exactly does the State prove a DUI case?

Elements of a Driving Under the Influence case

In order to prove a driving under the influence or driving while impaired case, the State must prove beyond a reasonable doubt that:
(1) that the defendant drove, operated, or moved a vehicle [or was in actual physical control of a vehicle]; and
(2) that, at the time, the defendant was either under the influence of alcohol or impaired by alcohol.

The distinction between driving under the influence of alcohol and driving while impaired by alcohol is one of degree. Both crimes require that normal coordination be reduced as a result of the consumption of alcohol.

Driving under the influence of alcohol is the more serious crime. It requires that alcohol has substantially impaired the person's normal coordination.

Driving while impaired by alcohol is the less serious crime. It requires that alcohol has impaired the person's normal coordination to some extent.

Even if there is evidence that the defendant consumed alcohol, the defendant cannot be found guilty unless the defendant was either under the influence of alcohol or impaired by alcohol.

What happened in the Atkinson case?

Boyce Cornelius Atkinson was arrested on March 7, 1992 and charged with driving while intoxicated. A Harford County Sheriff's Deputy observed Mr. Atkinson's vehicle parked on the right hard shoulder of westbound Route 40. When the deputy approached his vehicle, he saw Mr. Atkinson slumped over in the driver's seat with the keys in the ignition and the engine off. The deputy eventually awoke Mr. Atkinson who smelled like alcohol. Mr. Atkinson performed poorly on field sobriety testing, and he refused to submit to an intoximeter. Mr. Atkinson and the State agreed upon the facts as presented to the Court, but disagreed as to whether or not Mr. Atkinson was in actual physical control of his vehicle.

The Maryland Court of Appeals (the highest court in Maryland) found that Mr. Atkinson was not in actual physical control, and laid out a six part test to consider whether a person is in actual physical control of a vehicle.

What factors would the Court or Jury consider?

According to the Maryland Court of Appeals' opinion in the case, a jury or judge could take into account a number of factors including the following:

1. whether or not the vehicle's engine is running, or the ignition on;
2. where and in what position the person is found in the vehicle;
3. whether the person is awake or asleep;
4. where the vehicle's ignition key is located;
5. whether the vehicle's headlights are on;
6. whether the vehicle is located in the roadway or is legally parked.

"No one factor alone will necessarily be dispositive of whether the defendant was in "actual physical control" of the vehicle. Rather, each must be considered with an eye towards whether there is in fact present or imminent exercise of control over the vehicle or, instead, whether the vehicle is merely being used as a stationary shelter. Courts must in each case examine what the evidence showed the defendant was doing or had done, and whether these actions posed an imminent threat to the public.

Perhaps the strongest factor informing this inquiry is whether there is evidence that the defendant started or attempted to start the vehicle's engine. The policy of allowing an intoxicated individual to "sleep it off" in safety, rather than attempt to drive home, arguably need not encompass the privilege of starting the engine, whether for the sake of running the radio, air conditioning, or heater. " Atkinson v. State 331 Md. 199 (Md. 1993).

How does the jury hear about this defense?

Maryland's Criminal Pattern Jury Instruction 4:10.2 addresses actual physical control. A skilled attorney would ask for this jury instruction, or point it out to the Court in a trial. It states as follows:

In this case, there [is] [may be] an issue as to whether the defendant was in actual physical control of a vehicle. To decide if the defendant was in actual physical control of the vehicle, you should consider whether there is evidence that the defendant was physically able and likely to move the vehicle at that time. Relevant factors and circumstances to consider may include:
(1) whether the vehicle's engine was running or the ignition was on;
(2) whether the parking brake was engaged;
(3) whether and in what position the defendant was found in the vehicle;
(4) whether the defendant was awake or asleep;
(5) where the vehicle's ignition key was located;
(6) whether the vehicle's headlights were on; and
(7) whether the vehicle was located in the roadway or was legally parked.

No single factor will necessarily determine whether a person is in actual physical control, and it is up to you to decide what weight to give to the relevant factors. If a person is using a vehicle only as a stationary shelter, that person is not in actual physical control.

What the Maryland DUI shelter rule means for you.

Utilizing the shelter rule in your case may be as easy as evaluating the six factors present in the atkinson opinion. More importantly though, a skilled DUI attorney will generate these factors through cross examination, so as to make this a strong defense in your case.

Will this defense win my case?

For me to answer that question, you will need to contact our firm for a consultation.