Often times in Maryland DUI prosecutions, there is an issue of whether the defendant was actually behind the wheel or driving. This often comes up when the defendant pulls over to “sleep it off”.
The term “drive” as used in the Maryland drunk driver statutes means to drive, operate, move or be in actual physical control over a vehicle. This includes control over the steering of a vehicle that is being towed.
The seminal Maryland case on this issue is Atkinson v. State, 331 Md 199 (1993). In Atkinson, Maryland court of Appeals has determined that in situations where the driver is simply using his car for shelter until sober enough to drive, the driver can not be prosecuted for DUI. As long as the occupant is totally passive and has not made any attempts to actively control the vehicle. he is immune from a DUI prosecution in Maryland.
What constitutes “actual physical control” includes 1) whether the vehicle is legally parked or on a public roadway, 2) whether the vehicle’s headlights are on, 3) whether the ignition is on and the engine is running, 4) whether the driver is awake, 5) where in the vehicle is the occupant (driver’s seat or back seat makes a significance difference), and 6) the physical location of the ignition key.
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