Drunk Sleeping is not the same as Drunk Driving

The Commonwealth of Pennsylvania along with state and local police are all trying to make our roadways safer…or so they claim.  Once again the evident hypocrisy is crystal clear when it comes to Pennsylvania DUI.  As a Pennsylvania DUI Lawyer, it is my job to show a balanced picture of what is really happening.

Decision on DUI frustrates officials

A local case of a man found asleep in his car might have to be dropped.

Recently, in Hanover Township resident, [name omitted] was considerably drunk and instead of making the dangerously wrong the decision of driving, he laid back in his parked car and intended to sleep it off.  He was arrested and charged with DUI.  The judge in the case ruled that the evidence the police collected was not admissible.

I think most of us would agree that this driver made the correct decision, unfortunately the prosecutor doesn’t agree with us:

But [the Luzerne County Assistant District Attorney] said the responsibility of police is to ensure the safety of the public. The law puts police in a difficult position because, without evidence the operator drove the car, the officer can’t arrest the person on suspicion of DUI.

“At best the officer can prevent the person from driving, but does he have the time to stand by the car to make sure they do not drive away?” the DA said.

Pennsylvania DUI Lawyer comments on DUI while Sleeping
Pennsylvania DUI Lawyer comments on DUI while Sleeping

So the prosecutor is frustrated because he couldn’t get someone convicted of a crime they hadn’t committed?  The defendant in this case was not driving or in actual physical control, so how can he be drunk driving?!?!?  Isn’t this argument recommending preemptive prosecution?  Just because he had the opportunity to doesn’t mean he committed a crime.  It reminds me of the shortest cross examination I ever had in a DUI case that ultimately resulted in a Not Guilty.  In this type of case, I only asked one question.  My one question to the officer in front of the Jury was simply:  “Officer, what does the D in DUI stand for?”  He replied “Driving”.  I asked no other questions as my point was made.

Take this example.  You walk in to a convenience store and grab a gallon of milk.  When you get to the counter you notice that there is no cashier around.  You wait a couple minutes and when no one arrives you leave the milk there and exit the store.  The cops arrest you because you were in the store alone and had the opportunity to rob the cash register.

It sounds silly.  It’s unconstitutional.  It’s against our rights.  It would never happen.

Unfortunately, it does with DUI.  There are many states that have enacted laws that allow people to be charged with a full DUI even if they are asleep in a parked car.

One again, the DUI Hypocrisy is evident in our law enforcement.  As citizens of Pennsylvania, we should not allow our rights to be compromised like this.

Justin McShane

PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.

One response to “Drunk Sleeping is not the same as Drunk Driving”

  • Herman Martinez says:

    It seems like prosecutors and police officers are the same regardless of the state. At times, I chalk it up to inexperience , but if we allow these people to get away with a misdemeanor DWI/DUI who is to say that they will stop there as they go further in the careers. I do not care if it is a traffic ticket or a murder the State must be able to prove their case.

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