Driver's Seat with the Engine On: How Far is Too Far to Make a DUI in Pennsylvania.

It's two in the morning and you don't know where the time went. How many beers did you have? Four? Five?

You get down from the bar stool and feel the sway of unsteady feet. You're not safe to drive.

By the time you make it to the parking lot, you've got two problems: 1) It's horribly cold outside; 2) You don't know how you're getting home.

There's your car. You get in. Maybe your spouse/parent/friend (who you owe big time) is on the way to get you. Maybe you'll sleep it off and drive home around dawn. Either way, you've got somewhere between thirty minutes and several hours before you get to be somewhere warm. Except for your car...

You're already in the driver's seat, because of course you're in the driver's seat. You turn the ignition on and turn the heat on high. Eventually, it starts getting warm. You fall asleep...

...and cue the flashing blue and red lights. The knock on the window. The stumble out of the car. "Walk in a straight line." "Stand on one leg."

"I'm placing you under arrest for suspicion of driving under the influence."

I've told this story, a variation on what happened to a client, to several people. Up until now, all of them told me that my client was sunk.

I'm relieved to say that all of my friends are wrong.

Under the DUI statute in Pennsylvania, "An individual may not drive, operate, or be in actual physical control of the movement of a vehicle" if drunk. 75 Pa. C.S. § 3802. Since those words were written, judges have gone back and forth explaining what it means to be "in actual physical control of the movement of a vehicle." One thing they have gotten pretty clear is this: If you start a parked car and do nothing else, you are not guilty of DUI.

The case that made this so is Commonwealth v. Byers, 650 A.2d 468 (Pa. Super. 1994), in which the Pennsylvania Superior Court made this powerful comment:

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.

Id. at 471.

This decision has not gone unchallenged. In 1996, a non-binding plurality decision from the Pennsylvania Supreme Court criticized Byers by writing, "While it may be laudable that one who realizes that he is incapable of safe driving pulls over to 'sleep it off,' the legislature has made no exception to the reach of the statute to such individuals." Commonwealth v. Wolen, 685 A.2d 1384, 1286, n.4 (Pa. 1996). In 2010, the Superior Court admitted that "Byers had been called into question" and refused to extend its protection to a defendant found sleeping in his car by a store that did not sell alcohol (unlike Byers who was found sleeping in front of a bar). Commonwealth v. Toland, 995 A.2d 1242, 1247 (Pa. Super. 2010). The logic is that if you are found far away from a source of alcohol, then you probably became drunk before you got there.

Despite these later decisions, the protection offered by Byers remains good law. The person left drunk in the cold does not commit a crime for "sleeping it off" in his car, even if he is in the driver's seat, and even if he turned the engine on. 

This doesn't mean that you cannot do yourself a favor by sleeping in the backseat, or staying out of your car and avoiding suspicion entirely. But if that fails, you still have options left.