Interviewer: Do officers typically find them while they’re asleep and wake them up?
If they’re going to get arrested or charged for DUI, what is the process?
Brian: Unfortunately, people are getting arrested and in a way, they’re getting hassled for doing the right thing. Usually an officer will come upon a vehicle sitting by itself in a parking lot or a vehicle parked on the side of the road. Sometimes they will be in restaurant parking lots.
I’m dealing with a case right now where I was able to get video footage of about two and a half hours where my client sat in his vehicle for those two and a half hours and did not move. Unfortunately, he had to go through arrest.
He is currently being charged and they’re alleging that he was driving under the influence, but we have video evidence of him sitting in a parking lot for two and a half hours. This is a person who relinquished control and was not planning on driving. He did the right thing, but he’s still becoming a victim of the system.
Sometimes, It Is Not Readily Apparent that a Driver Has Relinquished Driving to Allow the Effects of Alcohol to Dissipate
There are some Shelter Rule defenses that are very clear-cut, such as my client who sat in the parking lot for two and a half hours. There are others that are not as clear-cut, such as people who are not properly parked in parking spots.
Someone who is passed out in the middle of the roadway is not going to be able to take advantage of the Shelter Rule. On occasion, what I will see is that officers will go up to a vehicle and tap on a window and all of a sudden, a person wakes up and they start to put the car into drive and they start driving away.
These are not good Shelter Rule defenses because while an officer may be having a suspicion that someone is possibly sleeping in their car after drinking, officers also have a community caretaking function to check up on people to make sure that they’re OK. They have to make sure that they’re not sitting there dead or they’re not passed out in a coma.
Unfortunately, a lot of times this community caretaking function evolved into a DUI investigation once they do find that a person is drunk. The officers, for whatever reason, do not seem to be giving people the benefit of the doubt or giving them credit for doing the right thing.
