Although everyone knows that you can be charged with a DWI for drinking and driving, it is a lesser known fact that you can also be arrested for a DWI while parked. North Carolina’s DWI laws make it illegal not only to be operating a vehicle after you’ve had too much to drink, but it is also against the law to be in “actual physical control” of a vehicle while under the influence. This means that you can face charges for driving while impaired even if the vehicle was not moving or in operation.

Key Takeaways

What is the Actual Physical Control Rule?

Under North Carolina law, being in “actual physical control” of a vehicle while impaired by alcohol or drugs is strictly prohibited. While there is no statutory definition of this phrase, courts interpret it broadly. Generally, it is construed to mean that the driver has placed themselves in a position in which they could easily begin driving. In other words, this law makes it possible to be charged with a DWI while parked.

What Do Courts Look at to Determine Actual Physical Control?

There is no uniform test applied by North Carolina courts that outlines the factors for “actual physical control” of a vehicle to be convicted of a DWI while parked. Rather, courts look at the totality of the circumstances in each individual case. Some factors a court would look at to determine whether a driver was in actual physical control of the vehicle include:

• Engine status: A court would evaluate whether the engine was running or the vehicle’s start system was engaged.
• Warm hood or engine: A warm hood or engine can indicate that the car had recently been driven.
• Key placement: Where the keys were placed in the vehicle can play a crucial role in determining actual physical control. For instance, if the keys were in the ignition, this suggests that the driver had the ability to operate the vehicle and intended to exercise control over it.
• Location in the vehicle: A court would look at where a driver was sitting in the vehicle. If the driver was sitting in the driver’s seat, the prosecution may have stronger evidence of actual physical control.
• Where the vehicle was parked: If the car was parked on a public road, highway, or other location that suggests the vehicle had been moved from its original location, this could suggest that you had been driving while intoxicated.

Ultimately, no single factor is determinative. Even details that may seem minor, such as where the keys were located or where the driver was seated, can impact whether a charge for a DWI while parked can be sustained.

Can You Be Charged with a DWI While Parked if You Were Sleeping?

You can be charged with a DWI while parked even if you were “sleeping it off” in your vehicle. If law enforcement finds you sleeping in a parked vehicle they can still build their case around circumstantial evidence that you had recently driven while under the influence. Significantly, sleeping in the driver’s seat with keys nearby or the engine running may be sufficient to establish actual physical control.

What are the Defenses for a DWI While Parked in North Carolina?

The penalties for a DWI while parked in North Carolina are just as severe as those for a DWI while driving. They can include jail time, monetary penalties, mandatory participation in a substance abuse program, license suspension, the requirement to install an ignition interlock device, and a permanent criminal record. This is why it’s vital to have the representation of a knowledgeable DWI attorney who can mount a solid defense.

A common defense to a DWI while parked is lack of probable cause. If the officer did not have a legally valid reason to approach you, the evidence against you may be challenged. Similarly, Constitutional violations can be raised in cases where the police failed to follow the law during the encounter. Evidence obtained in violation of your Constitutional rights may be suppressed, sometimes resulting in the case being dismissed entirely.

Depending on the facts of the case, other defenses can be built upon challenging the breathalyzer results or arguing that you were not in actual physical control of the vehicle. In the event the engine was not running and you were in the back seat of the vehicle, these facts may undermine the prosecution’s case.

Contact an Experienced North Carolina DWI Attorney

If you’ve been charged with a DWI while parked, it’s essential to have a skilled DWI attorney by your side who can fight the charges against you. The Johnston County DWI attorneys at Reece & Reece, Attorneys at Law provide reliable representation to clients who are facing DWI charges in North Carolina. Call (919) 300-1249 or contact us online to schedule a consultation and learn how we can help.