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  • Writer's pictureCamille Wagner

Can I get a DUI if I am not driving?

Logic would lead you to believe that the answer is no... but the law is not always logical. The answer to this question is (shockingly) yes!

How is this possible?

For the government to prove you guilty of Driving under the Influence (DUI), they have to prove either:

- The individual operated a motor vehicle in the District of Columbia and had an alcohol concentration level at the time of testing above the per se limit (.08 g/210 l of breath) (.08 g/100 ml of blood) (.10 grams/100 ml of urine); or

- The individual operated a motor vehicle in the District of Columbia and at the time the defendant operated the vehicle, s/he was under the influence of (alcohol) (any drug) (a combination of alcohol and any drug).

What constitutes "operating a motor vehicle"?

Now this is where logic and law do not go hand in hand. You would think that you cannot be found guilty of driving under the influence if you are not "driving" or "operating" the vehicle. Let's use some examples:

  • Am I "operating" my car if I am parked?

  • Am I "operating" my car if I am taking a nap?

  • Am I "operating" my car if the car is not even on?

  • Am I "operating" my car if I am not even in the driver's seat?

Logic says no. But the law say yes, you are operating your car.

What? How?

Section 50–2206.11 provides that “No person shall operate or be in physical control of any vehicle in the District: (1) while the person is intoxicated; or (2) while the person is under the influence of alcohol or any drug or any combination thereof.”

So this means that "operation" does necessarily mean driving, but also physical control.

Let's use some examples

In Berger v. District of Columbia, 597 A.2d 407 (D.C.1991), police officers found the allegedly intoxicated defendant sitting in the driver's seat of his parked car; he was alone in the

vehicle and no one else was in the vicinity. The sole officer who testified at trial could “not remember whether the engine was running or whether the keys were in the ignition” and could not “recall how he obtained possession of the keys.”

The court ruled that the defendant was in physical control of the vehicle so the element of "operating a vehicle was met."

Let's use another famous case in DC called Bell v. District of Columbia, 132 A.3d 854 (2016). The basic facts were that officers were watching patrons disperse from a club that was closing and as the parking lot emptied, they noticed a car sitting in the parking lot with an individual behind the wheel and the motor running. As the officers approached, they saw the defendant sleeping in the driver's seat. The ignition keys were in his pocket.

The Court ruled that the defendant was in physical control of the vehicle because "in that position and with the keys at hand, the defendant was capable of starting the vehicle should he have awakened and, in his impaired state, made a decision to drive."


What do I do if I get a DUI?

You contact Wagner, PLLC.

  • Our DUI & criminal defense attorneys have the experience and knowledge to handle your DUI case.

  • We have an attorney who is a former Assistant Attorney for the Office of the Attorney General, which is the agency that prosecutes DUI offenses in the District of Columbia.

  • We are here to fight for you! You have a problem, we are the solution!

If you are interested in a specific topic, add a comment and we will make a post about it!

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