Total DUI

A recent decision by a New Jersey appellate court will serve as a reminder to us all that sometimes the letter of the law can catch someone acting responsibly. 

David Montalvo had had too much to drink, and rather than driving himself home, decided to sleep one off on the bench seat of his GMC pickup in a deli parking lot in Hamburg, New Jersey.  For the safety of pedestrians and other motorists, as well as his own safety, Montalvo made the right decision by choosing not to drive in an intoxicated state.

However, when Montalvo woke up to the sight of a Humburg police officer, his decision proved to have consequences he didn't imagine when he went to sleep.

The officer had stopped to check on the truck, which was sitting alone in the parking lot at around 5 AM, before any of the stores in the strip mall lot were open, and whose engine was on and racing.  Because of cold temperatures outside, Montalvo had turned in the engine on to keep the heater running, and while sleeping his foot had apparently slipped on to the gas pedal.

When he noticed the smell of alcohol from Montalvo's previous night libations, the officer requested a breathalyzer test from Montalvo, which he refused.  Montalvo was arrested and convicted of DUI, and though he appealed the decision, claiming that the officer had no reasonable grounds to investigate his parked truck, the appellate judge ruled otherwise, stating that because of Montalvo's condition and the fact that his car engine was running in the parking lot, the officer had the right to make sure he was okay.

Contrary to the intention behind his actions, Montalvo did not need to be "driving" to be arrested and charged with DUI, "driving under the influence."   State statutes vary on what it means to be operating a vehicle: in some states, having the keys in the ignition means you're legally operating it, while in other states, simply being in the driver's seat is enough.

Which means, even if you do the right thing and sleep one off to avoid endangering others, be careful where you do it!

I understand the need for Physical Control. However, I feel some police and prosecuting agencies aggressively charge that crime. It is one thing being passed out in an intersection. It is quite another being completely off the road and sleeping in the passenger seat. That has happened on a few occasions according to friends.

By the way here is a link to a cool DUI online survey.