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Court of Appeals gets DUI "operating case" right.

Can't be cited for DUI when just sitting in your car drunk

Our Court of Appeals recently got it right in Crosby v. Commonwealth of Kentucky, NO. 2015-CA-000308-MR, published May 18, 2017. The case arose out of Oldham County and questioned what constitutes "operating a vehicle" under our DUI law.

Ms. Martin was legally intoxicated while hanging out in her car, that was not disputed. The issue was whether she was in "control" or "operating" her vehicle at the time the officer encountered her. The car's engine was running and she was legally parked but "slumped over the wheel," smoking a cigarette, texting on her phone and listening to the radio.

Pursuant to Wells v. Commonwealth, 709 S.W.2d 847, 849 (Ky. App. 1986), four factors should be considered in determining whether a defendant operated or physically controlled a motor vehicle while intoxicated as needed to violate KRS 189A.010:

(1) whether or not the person in the vehicle was asleep or awake; (2) whether or not the motor was running; (3) the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and (4) the intent of the person behind the wheel.

The court found the first two factors present but the second two were not proven. As to #3, there was no evidence that the vehicle had been operated by a drunk driver, no accident or irregular placement. So basically, the officer didn't now if she parked it sober, got drunk, then walked back to the car. The final part of the "Wells" test was missing too because the evidence was that she intended to return to the party and there was no evidence she intended to drive.

What I like about this opinion is that the Court looked closely at all four parts of the "Wells" test. I have seen many trial courts say, "If a Defendant had the keys in their possession and were seated behind the wheel, they were in control of the vehicle; and if they are in control of it, they can be found guilty of DUI" even though the car never moved.

I would like to think the Court of Appeals chose to publish Crosby to help District Judges avoid continued misapplication of the "Wells" test.

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