Can I be arrested for DUI while sleeping in my car?
Yes. You can be arrested for a DUI in Ohio while sleeping in your car. I have seen several cases where people are arrested for DUI while asleep. Examples are: you are passed out at a drive thru, you are passed out at an intersection, you fall asleep with the car running in a parking lot, etc.
Lets first look at what DUI means in Ohio. The law defines DUI in ORC 4511.19. In its simplest form it states:
4511.19 Operating vehicle under the influence of alcohol or drugs – OVI.
(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply: (a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.
I will refrain from adding the whole text since it contains 10,031 words, 135 paragraphs, and 202 sentences. Suffice it to say that there are a lot of ways to get a DUI in Ohio.
There are three basic elements in our analysis: operation, of a vehicle, under the influence. For our purposes here the question relies on the issue of how we define operation since being in a car is not an issue and we will assume for the sake of argument that you are under the influence.
So the officer needs probable cause to believe that you were operating the car under the influence of drugs or alcohol to justify an arrest for DUI in Ohio. So what does operate mean? ORC 4511.01 section (HHH) defines the term operate. It says, “Operate” means to cause or have caused movement of a vehicle, streetcar, or trackless trolley.” They do not need to observe you actually driving the car. The officer can use circumstantial evidence to establish operation.
For instance, one court in Ohio found the term operate was satisfied where police found a vehicle with a person slumped over the steering wheel on an exit ramp at a stop sign. The court held operation was satisfied where the engine was running. State v. Adams, 2007-Ohio-4932. Courts have found operation where cars were stuck in the mud with the suspects in the driver’s seat and some evidence of movement trying to free the vehicle. State v. Reynolds, 1985 WL 9376. One court held that a person that ran out of gas was not operating at the time the police found him. State v. McKivigan, 1987 WL.
I also recall reading about a case where a person parked their car in a lot. He was found later asleep by police. The lot was covered with snow and no footprints outside the car were present. The court found that the circumstances indicated that the person drove the car under the influence even though he was sleeping it off in the car.