DUI Definitions: What Counts as “Operating,” “Driving,” and “Being in Actual Physical Control” of a Vehicle?

How state DUI laws differ in defining the “driving” element of drunk driving.

Most impaired driving arrests are the result of an officer witnessing the person driving a vehicle down the road while under the influence of drugs or alcohol. But can an impaired person be convicted of a DUI even if he or she doesn't actually put the vehicle in gear? It might come as a surprise, but in most states, movement of the vehicle isn't required for a DUI conviction. In these states, an impaired motorist could face DUI charges for conduct such as sitting in the driver's seat of a parked car, sleeping in a running car, or attempting to start a vehicle. This article will shed some light on this grey area and explain how state DUI laws define "driving," "operating," and "being in actual physical control" of a vehicle.

Driving, Operation, and Actual Physical Control

State DUI laws are in unanimous agreement that impaired motorists who are actually driving a vehicle are in violation of the law. However, only a few states require proof of actual driving (a vehicle in motion) for a DUI conviction. The laws of most states don't even use the term "driving." Instead, state laws generally prohibit impaired motorists from "operating" or "being in actual physical control" of a vehicle. Some states also included "attempted" DUI within their DUI statutes.

DUI Laws Using the Terms "Driving" and "Operation"

In some states, the DUI laws specifically prohibit "driving" or "operating" a vehicle while under the influence. Generally, these terms are used synonymously to mean actually putting your vehicle in motion. As noted above, driving while under the influence can get you convicted of a DUI in every state.

However, in some states, "operation" is broadly defined to encompass more than just driving. This more liberal interpretation basically brings operation in line with "actual physical control," a term that lots of DUI statutes use and is discussed in the next section.

"Actual Physical Control" DUI Laws

The DUI laws of most states use the term "actual physical control." Definitions of this term differ somewhat by state. But generally, a person sitting in a stationary car is considered to be in actual physical control of the car (even if the car isn't actually moving) if certain conditions exist. Typically, the qualifying conditions amount to the person being in a position where he or she can exercise control over the vehicle and can, by taking a few simple steps, put the vehicle in motion.

For example, a drunk patron who stumbles out of the bar and places his keys in the ignition of his vehicle would, under the laws of most states, be in actual physical control of the vehicle. In these circumstances, the driver is in position and just a few simple actions away (turning the key and putting the car in gear) from driving. So, in states that only require actual physical control, the driver could be arrested for a DUI.

"Attempted" Driving Under the Influence

Some states also define DUI as operating or attempting to operate a motor vehicle while under the influence. This definition has roughly the same effect as the "actual physical control" definition as it expands DUI offenses beyond actual driving. To qualify as an attempt, the driver typically must take some overt action to engage the vehicle or put the vehicle in movement. Overt actions can include things like turning the ignition or reaching for the gear shifter. Also, a driver who is attempting to drive an inoperable vehicle (such as a car that's stuck in the mud, has blown its engine, or has a broken axle) can still be convicted of attempted operation.

Some states treat impaired operation differently than attempted impaired operation in terms of possible penalties. Generally, states that do this penalize attempts less severely than normal DUI offenses.

Sleeping-It-Off Defense

An impaired motorist might choose to rest and sober up in their vehicle rather than drive home while under the influence. While perhaps not the best choice, the laws of many states allow some wiggle room for drivers who opt to "sleep it off" in their vehicles. Generally, if a person is sleeping in the vehicle but is not in the driver's seat and can't exert immediate control over the gear shifter, steering wheel, or ignition, the person doesn't technically come under the definitions of driving, operating, attempting to operate, or being in actual physical control of the vehicle.

States have designed DUI laws to encompass more than actual driving. But these laws are not without limits. If you were arrested for a DUI while sitting in a parked car, it's a good idea to talk to an attorney regarding some of these possible defenses.

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