As a S.t Louis attorney that handles DWI cases on a daily basis, I am constantly asked questions by clients, friends and family about how to avoid a DWI arrest. They all seem to think that if they have had too much to drink,and they realize it while they are driving that they should pull over and sleep it off, a situation I see often in my criminal law practice. In theory this seems to make sense except that most people forget one important thing, turn off the car and remove the keys from the ignition!. In Missouri, “A person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an intoxicated or drugged condition. See Missouri Revised Statute 577.010.1.
“Operates” is defined by statute as “physically driving or operating a motor vehicle.” Missouri Revised Statute 577.001.2. If the keys are in the ignition and the car is running you are operating a motor vehicle. The Missouri Court of Appeals confirmed this again in State v. Wilson (full opinion here), a decision recently handed down on July 12, 2011.
Prior to a DWI arrest, in May 2009, Barbara Lehmen saw a truck pull up in front of her house in Gasconade County Missouri. She observed a person inside the truck moving around but was unable to see who it was. The police arrived about 30 minutes later. The chief of police walked up to the truck and saw James Wilson reclined in the driver’s seat of the truck asleep. Wilson’s speech was slurred and he appeared to be disoriented and the police officer reached in and turned off the engine, as the truck was still running. The police ten reported that Wilson was unsteady on his feet, swaying and stumbling. He submitted to a breath sample and blew a BAC of 0.273%. At his criminal DWI trial, James Wilson was found guilty, his criminal defense attorney appealed the guilty verdict arguing that there was insufficient evidence to prove he was operating the vehicle as required by sections 577.001 and 577.010 of the Missouri Revised Statutes.
James Wilson’s main argument is that the evidence did not show he was physically driving or operating a motor vehicle and that he was just sleeping in a parked truck. The Court disagreed relying on Cox v. Director of Revenue, 98 S.W.3d 548, 550-551 (Mo. Banc 2003). In that drunk driving case the police had probable cause to believe that the Defendant was operating his vehicle where the Defendant was found sleeping in the driver’s seat of his car with the keys in the ignition and the engine was running. In the Wilson case, the Court went a step further and stated that the evidence was strong enough to infer that James Wilson drove there drunk as only 30 minutes had passed since he pulled up and the fact that he was incoherent and blew a 0.273% BAC. See State v. Johnston, 670 S.W.2d 552, 557 (Mo.App.S.D. 1984); See State v. Varnell, 316 S.W.3d 510, 518 (Mo.App.W.D. 2010).
The Courts confirmed the State of Missouri’s position that if you are in the car and the keys are in the ignition and the car is running you can be convicted of DWI. So, if you find yourself int he position of driving home and realizing you drank too much, pull over, take the keys out of the ignition, and to be even more safe, get out of the drivers seat and sleep it off in the back seat or call someone for a ride.
If you need to discuss a DWI arrest contact the St. Louis DWI law firm of Sansone & Lauber. Firm partner and defense attorney Gary Lauber has extensive experience in defending individuals charged with a crime including DWI. Contact us today for a free DWI consultation also see our DWI case results.
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