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Elf on the Shelf Charged With DUI

It is my understanding that the Elf on the Shelf may get into some minor trouble from time to time, but such an elf was recently charged with driving under the influence after being found asleep behind the wheel of a running vehicle with its headlights on and music playing. I feel bad for this elf as his costume and the pending DUI case has brought him unwanted national attention, but this case also gives me an opportunity to debunk a misunderstood part of Pennsylvania DUI laws, which is that a person can be charged with drunk driving even if he or she is not actually "driving" a vehicle.

Pennsylvania DUI Charges When Not Driving Vehicle

The Pennsylvania driving under the influence law, found at 75 Pa.C.S.A. ยง3802, prohibits a person from driving, operating, or being in actual physical control of the movement of a motor vehicle after that person has imbibed a sufficient amount of so that the person is incapable of safe driving or has a blood alcohol level over the legal limit. Everyone is aware that driving with a blood alcohol content above the legal limit is illegal. However, some people are not aware that a person can be charged with DUI for just being behind the wheel while intoxicated because that person is in actual physical control of the vehicle.

The problem with such charges is that they sometimes fly in the face of public policy, meaning a policy in which you want a person that has consumed a bit too much to drink to sleep it off in the car. If a person realizes that he or she can be charged with a DUI for sleeping behind the wheel, he or she may simply choose to drive home and risk getting a DUI while driving.

Sleeping Behind Wheel Can Lead to DUI Charges

In the case of Pennsylvania v. Byers, 502 A.2d 468 (Pa. Super. 1994), the Pennsylvania Superior Court actually ruled that a person was not "in actual physical control" of a vehicle in a situation in which a man was asleep in his vehicle in the parking lot of the bar in which he had been drinking, and the car was running. In that case, the court reviewed Pennsylvania DUI precedent and stated that key factors in whether or not a person was in actual physical control of a motor vehicle included "a combination of the motor running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle."

A key factor was often the location of the vehicle as said factor often provided circumstantial evidence as to whether or not the vehicle had been driven after the driver had consumed alcohol. In the Byers case, the man was asleep behind the wheel of a running car, BUT the car was still in the parking lot of the tavern in which the man had been drinking. Circumstantial evidence tended to show that the man had crawled into his car to sleep and had started the car for heating purposes.

A few years ago, I had a client that was charged with DUI in Centre County after he was found asleep behind the wheel of his running truck in the parking lot of the Bellefonte VFW on New Year's Eve. The bartender confirmed that the client had been drinking at the bar, had made arrangements with the bartender to drive him home after she finished her shift, and that the man had gone to his truck to sleep. Because it was winter time, he started his truck to stay warm, and he fell asleep in the driver's seat. Based upon the Byers case, I was able to convince the prosecutor to dismiss the drunk driving charges.

I had another DUI case stemming from a Penn State tailgate in which a person was asleep behind the wheel of a running car in a parking lot and was charged with driving under the influence. In that case, the person had on a seat belt, the head lights were on, and the car was not parked within the normal lines in the parking lot. I advised the client that I did not believe that he had a good case to fight because the circumstantial evidence tended to show that the person had been driving after drinking. The prosecution would readily argue that the poor park job tended to show driving after drinking, and the seat belt and headlights showed that the client had been driving. In that case, because the client was a first-time offender, the client chose to resolve the case by participating in the Centre County ARD program. Upon completion of the program, the charges were dismissed and then expunged from the client's criminal record.

The actual physical control issue in Pennsylvania driving under the influence cases shows the importance of contacting an experienced DUI lawyer for a case review if you are charged with drunk driving. Cases are often fact sensitive, and an experienced lawyer can tell a prospective client what facts support a defense and what facts support the prosecution arguments. Contact a reputable criminal defense attorney for a free case review.

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