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Third Time DUI/DWI Offender Successfully Defended utilizing “shelter” Defense in Baltimore County District Court

In Maryland, DUI/DWI Attorneys are often confronted with cases in which a client was found not to be driving while impaired or under the influence, but instead was found to be sleeping in his or her vehicle while under the influence of alcohol. This situation implicates the so called “shelter defense” in Maryland. Unlike in some other states, Maryland legislators have chosen not to make sleeping in one’s vehicle an absolute defense to DUI/DWI charges. Some states have decided that as a matter of public policy, they want to encourage people who are driving under the influence to pull over and “sleep it off” so to speak, rather than continue to endanger the public by continuing down the road while under the influence. In these States, it matters not where the person was parked, how long they had been there or whether or not they admit to driving the vehicle to the location while under the influence. If the person made the decision to pull over and park their car rather than continue to drive under the influence, they simply may not be prosecuted for DUI/DWI in these states. Not so in Maryland.

In Maryland, the law essentially states that a person may use his or her car as a shelter while under the influence of alcohol so long as he makes no attempt to control the vehicle and does not present an imminent danger of doing so. A person in this situation can only be prosecuted for DUI/DWI if the facts and circumstances under which the person was discovered in the vehicle indicate that the person operated the vehicle while under the influence prior to using it as a shelter or that the person is imminently going to operate the vehicle in that condition. The leading case on this issue is Atkinson v. State. In that case the court laid out a 6 factor test to determine whether or not the person had driving the vehicle while under the influence or was simply using the vehicle for shelter.

In Atkinson the Court held that the inquiry must always take into account a number of factors, including:

1) Whether or not the vehicle’s engine is running or the ignition is on;

2) where and in what position the person is found in the vehicle;

3)whether the person is awake or asleep:

4) Where the vehicle’s ignition key is located;

5) whether the vehicle’s headlights are on; and

6) Whether the vehicle is located on the roadway or is legally parked;

In the case that I had in Baltimore County District Court yesterday the facts as testified by the arresting police officer were as follows: The Officer testified that he found my client sleeping in the driver’s seat of his vehicle slumped over the steering wheel. The car was parked in the parking lot of a convenience store in a designated parking space. The engine was not running. The key was in the ignition but was not turned on. His girlfriend was sleeping in the passenger seat next to him and he was clearly under the influence of alcohol. (Ultimately, he was found to have a .16 BAC).

The State then produced the clerk from the convenience store. In a classic case of police exaggeration, the report read that the witness had seen my client drive into the parking lot, exit the vehicle and enter the store. When I spoke to the witness prior to the trial, however, she told me (and later testified) that she hadn’t seen any of what was attributed to her in the report. Instead she testified that she first noticed my client after he was already in the store. She testified that he appeared to be highly intoxicated. She said that he purchased a pack of cigarettes and a candy bar. She then watched him exit the store and get into his vehicle on the driver’s side. When she looked out into the parking lot a few moments later, the vehicle was still there and she noticed that my client was slumped over the steering wheel which is what caused her to notify the police.

After all of the testimony was taken ( I called no witnesses) I argued that there was simply no evidence that my client had driven the vehicle into the parking lot. He did not make an admission to doing so and there were no witnesses who saw him drive into the lot. Moreover, after getting into the truck after exiting the convenience store, the evidence is uncontradicted that he made no attempt to start the vehicle, much less to drive it out of the parking lot. I argued that the girlfriend could just as easily have driven the car as my client or that there could have been a third person who drove the car into the parking lot and then left the scene. I argued that the court simply cannot know because there were no witnesses who saw the vehicle enter the parking lot.

Finally, I applied the facts of the case to the 6 factor Atkinson test and pointed out to the court that 4 out of the 6 factors weighed in my clients’ favor. The vehicle was not running; the headlights were off; he was asleep; and the car was legally parked as opposed to being in the roadway. Only 2 factors weighed against him and they were that he was in the driver’s seat and the keys were in the ignition.

The Court agreed and ruled that the fact that there were no witnesses to him driving and that 4 out of the 6 Atkinson factors weighed in his favor prevented the court from concluding beyond a reasonable doubt that my client had operated the motor vehicle while under the influence of alcohol.

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