Many people are surprised to learn that “driving” is not an element of DWI in North Carolina. Driverless DWIs come up rather frequently, as many people view sleeping in the car as a good alternative to drunk driving. This alternative may be safer, but it is not legal.
According to NC drunk driving law, a person must be operating a vehicle to be guilty of DWI. An “operator” is defined as “a person in actual physical control of a vehicle which is in motion or which has the engine running.” So, if a person is asleep at the wheel, the person still has control over the vehicle, assuming the engine is running. Therefore, the safety of other motorists is still at risk. Previous court cases have consistently upheld this position.
In contrast, assume an officer approaches a car in which a person is asleep in the back seat and the engine is not running. In some states, there may still be enough circumstantial evidence for DSWI charges to hold up in court. But in North Carolina, that may not be the case. So, a Raleigh DWI lawyer can successfully contest the “operating” element of a Wake County DWI.
At Sandman, Finn & Fitzhugh, we strongly advise people to avoid getting into their cars if they have been drinking. Rather, request a ride from Uber or Lyft, or ask a sober person to pick you up. If you wind up in your car, place your keys in the glove box or under the front seat, and then get in the back seat. So, a Raleigh DWI lawyer could later argue that you could not have operated the vehicle, even if you wanted to.