December 11, 2014

What constitutes "Operation" for DUI purposes in Kentucky?

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PictureDon't sleep and drive! It is not every day that you get a client who is being charged with a DUI while they were sleeping in their vehicle. Now that begs the questions, can you really be guilty of a DUI if the vehicle was not moving and you were unconscious or sleeping, even though you were located in the driver's seat?

Various states across the country have their own definitions for what constitutes person's operation of a motor vehicle for purposes of the DUI statutes. Some states define it as "driving," while others, use terms like "operation," and "actual physical control."

But what about Kentucky? -- Well, I'm glad you asked!

In Kentucky, the DUI statute KRS 189a.010(1) begins as follows: "A person shall not operate or be in physical control of a motor vehicle anywhere in this state[.]" That is quite vague. What do those words mean? Well, unluckily, Kentucky courts have not defined those terms, but what they have done is given us some guidelines as to what constitutes physical control and operation.

The controlling case is Wells v. Commonwealth, 709 S.W.2d 847 (Ky. App. 1986). It outlines the four factors a court must look at in order to determine whether or not a person operated or was in actual physical control of a motor vehicle. The factors are:

(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.

Basically, it is a totality of the circumstances analysis. The court will look at the factors above along with any other facts and circumstances, and determine whether or not that constitutes "operation" or "physical control." 

In my current sleeping driver case, the key was turned to the 'on' position with the engine running and her headlights were on (that's why the officer presumably decided to investigate the scene.) It was a cold February night, and she wanted to stay warm in her vehicle. She was not intoxicated and there were no field sobriety tests done nor does the Commonwealth have an Intoxilyzer result.

So why in the world is she being charged with a DUI?! Good question, dear reader. Results remain to be seen. The facts are great, the argument appears flawless, now it's up to the prosecutor to dismiss the case.

Thanks for readin' and God bless.

If you require assistance with a DUI, expungement, traffic ticket, or other criminal charges, please contact me or call me at (270) 945-2778.

The DUI Guy


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The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired.
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