Is Driving Required to Prove DUI in Kansas?
Can I Be Asleep in my Car and be Charged with DUI?
The Kansas Supreme Court recently decided in State v Darrow, No. 109,397, July 1, 2016, that "Under the driving under the influence (DUI) statute, K.S.A. 2010 Supp. 8-1567, the term "operate" is synonymous with "drive" which requires some movement of the vehicle.
Consequently, an "attempt to operate" under the DUI statute means an attempt to move the vehicle. "The taking of actual physical control of a vehicle, without an attempt to move the vehicle, is insufficient to meet the attempt to operate element of DUI." emphasis added.
Defendant Darrow was asleep in her car after a night of drinking with friends. Darrow was found asleep in the vehicle with the car running the next morning. Darrow was in the driver's seat, the reporting Officer noted exhaust coming from the tailpipe and Darrow was the sole occupant of the vehicle.
The Officer woke up Darrow, who was 'passed out' behind the wheel with the car running. The Officer instructed Darrow to turn off the car. Darrow "started to to reach down and fumble with the gear shift , but the car stayed in park."
After a bench trial on stipulated facts, Defendant was convicted of driving under the influence (DUI), third offense, and refusing a preliminary breath test. Defendant appealed, arguing that the stipulated facts were insufficient to prove that she operated or attempted to operate a vehicle. The Supreme Court
affirmed, holding "(1) the court of appeals erred in its interpretation of the applicable statute, as taking actual physical control of a vehicle does not satisfy the operate or attempt to operate element of DUI; and (2) the stipulated facts presented by the parties were sufficient to prove that Defendant attempted to move the vehicle. "
Although Darrow's conviction for DUI was affirmed, the Kansas Supreme Court establishes in Darrow that some evidence of operation or attempted operation of the vehicle must be shown to convict someone charged with DUI in Kansas. If you were found asleep in your car, even with the engine running, that by itself is not enough to convict you of DUI. The Prosecutor is going to have to prove you "operated" or "attempted to operate" the vehicle which requires actual movement of the vehicle or an attempt to move that vehicle, for example, placing the car in gear.
This case will be useful where someone leaves a bar or a friend's house after consuming alcohol and gets into their car, turns the engine on to stay warm, but does not otherwise operate the car or attempt to drive it beyond turning the engine on.
If you have been charged with DUI please contact our office at 913-383-3311 for a free initial consultation
