For a person to be convicted of a DUI offense in Pennsylvania, there are certain elements of the offense that the prosecution must prove.   For example, the prosecution must prove that the person was "driving" a "vehicle" (for example, a car, SUV, truck, or motorcycle) on a "highway" or "trafficway" as defined by Pennsylvania law.  "Driving" a vehicle, as straightforward as it may seem, involves many considerations that have been interpreted by Pennsylvania courts over the years. 

Although there may be certain common issues in many DUI cases regardless of whether a person is facing a first, second, or third DUI charge, every case is unique.  In many instances, a person will be pulled over by the police for any various reason (legitimate or otherwise).  In other instances, due to an accident or the driver falling asleep at the wheel for example, the police may not arrive until a later time.  In such instances, the question of whether the person charged was in fact driving the vehicle may be an issue.  When applicable, an effective defense attorney will be able to argue that the person charged was not driving the vehicle, and should accordingly be found not guilty of the DUI charge.  Understanding how Pennsylvania law defines "driving" is critical to effectively presenting such an argument and also maximizing its impact.

How does Pennsylvania law define "driving" in a Pennsylvania DUI case?

What has been termed "actual physical control" or "operative control" of vehicle will be the determining factor in whether a person was in fact "driving," and therefore, if the other elements of the DUI offense are proven by the prosecution, would be driving under the influence as defined by Pennsylvania law.

What is actual physical control of a car when charged with a DUI in Pennsylvania?

The prior DUI statute codified as Pa.C.S.A. § 3731, repealed in 2003, merely prohibited "driving under the influence," and Pennsylvania courts interpreted "driving" narrowly.  Although the interpretation of what was considered "driving' was narrow, circumstantial evidence could be sufficient to establish that a vehicle had been in motion and that the person charged had been driving the vehicle. 

The 1982 amendment to § 3731 ("Driving under influence of alcohol or controlled substance"), however, led to a broad interpretation of what constitutes "driving," "operating," or being in "actual physical control" of the movement of a vehicle.  (Although the term "vehicle" encompasses various modes of transportation, "car" will be used for purposes of the following explanation.)

How is actual physical control of a car determined by the judge in a DUI case?

The totality of the circumstances will determine whether a person charged with driving under the influence is in actual physical control of a car.  Such factors as the location of the car, whether the car's engine was running, and whether there was additional evidence indicating that the person had driven the car prior to the arrival of the police.  Because factors that can indicate that a person was driving a car do not have to be witnessed firsthand, an eyewitness is not necessarily required to establish that a person was in fact driving, operating, or in actual physical control of a car.

For example, it was held that the evidence against the DUI defendant was sufficient where the defendant's car was located in the travel lane on a public street behind the other car involved in the accident and the defendant was leaning on the driver's side door when the police arrived.  Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa.Super 2003).

Will a person be found guilty of DUI if found asleep behind the wheel?

Sometimes otherwise responsible people unfortunately make the mistake of having too much to drink and trying to drive.  In some instances, such a person may make it to their destination with no issues.  In other instances, a person may have had so much to drink (or ingested other substances such as drugs) that they, embarrassing as it may be, fall asleep behind the wheel of their car - only to have the police come upon the scene.  In such an instance, a person will be charged with driving under the influence; regardless of whether the case involves alcohol or other substances.

As burdensome as facing a DUI charge may be, being charged alone is not an indication of guilt.  A fundamental principle of American jurisprudence is that the prosecution has to prove a defendant guilty in a court of law, and Pennsylvania courts have determined that something "more" is required to establish actual physical control than a defendant's presence behind the wheel with the motor running.  There must be evidence to support an inference that the car had been driven by the defendant while he or she was intoxicated. 

The fact that the car was not moving when the police arrive will not be the determining factor.  What must be proven by the prosecution is that the defendant was in actual physical control of either the machinery of the car or of the management of the movement of the car itself.  For example, when a Pennsylvania State Trooper found a person slumped across the front seat of a car, asleep, with the car's engine running and lights on, the evidence of actual physical control was deemed sufficient.  In another Pennsylvania case, there was sufficient evidence to prove a defendant guilty of DUI when the defendant was slumped over the car's steering wheel when first observed by the police officer, and 45 minutes later the defendant had a blood alcohol content (BAC) of 0.263%.

Other Pennsylvania cases have addressed the issue of what kinds of evidence will establish actual physical control, and if the other elements of a DUI charge are proven by the prosecution, when a person charged will be deemed to have been driving under the influence.

• A defendant was found intoxicated and behind the wheel his car in a store's parking lot with his car motor running.  This was considered sufficient evidence of the defendant's guilt to the DUI charges.  Commonwealth v. Saunders, 456 Pa.Super. 741, 691 A.2d 946 (1997).

• A defendant was discovered in the driver's seat of his car with the car's motor running and headlights on and the car parked perpendicular to the road.  The defendant admitted he had driven a friend home after a night of drinking and failed field sobriety tests (FST's) administered by police after their arrival.  This was considered sufficient evidence of the defendant's guilt to the DUI charges. Commonwealth v. Lehman, 820 A.2d 766, 771 (Pa.Super. 2003).

• A defendant's car was on the berm of a road that was fifty yards west of the bar where he had purchased beer, the defendant's car's engine and high beams were on, and the car was protruding into traffic lanes.  This was considered sufficient evidence of the defendant's guilt to the DUI charges.  Commonwealth v. Woodruff, 447 Pa.Super. 222, 668 A.2d 1158 (1995).

• A defendant's car was found down an embankment by the roadside, no keys were found, but it was a winter night and the car's hood was warm.  This was considered sufficient evidence of the defendant's guilt to the DUI charges.  Commonwealth v. Wilson, 442 Pa.Super. 521, 660 A.2d 105 (1995).

• A defendant's car was parked diagonally across a roadway, the defendant was in the car with his seat belt fastened, the car's parking lights were on, and the car keys were in the ignition in the "on" position, although the engine was not running.  Commonwealth v. Trial, 438 Pa.Super. 209, 652 A.2d 338 (1994).

• A defendant's car was parked on the berm of a highway (not in a store's parking lot) with the car's parking lights on and the car's engine running.  This was considered sufficient evidence of the defendant's guilt to the DUI charges.  Commonwealth v. Yaninas, 722 A.2d 187 (Pa.Super. 1998).

• A defendant was found asleep behind the wheel of his running car, but the defendant had not moved his car from the parking lot of the bar where he had been drinking.  Proof that the defendant had started his car, without more, was not enough to prove that he was in actual physical control of his car, and accordingly, this was insufficient evidence to prove the defendant's guilt.  Commonwealth v. Byers, 437 Pa.Super. 502, 650 A.2d 468 (1994).

• As with other Pennsylvania DUI cases, the Pennsylvania Superior Court held that the movement of a defendant's car does not need to be established by the prosecution for a defendant to be deemed to be in operative control of a car.   Commonwealth v. Lehman, 820 A.2d 766, 771 (Pa.Super. 2003).

• A defendant was found to be in actual physical control when he was found asleep in the front seat of the car while the car was parked on the side of the road with the car's engine running and lights on.  Commonwealth v. Crum, 362 Pa.Super. 110, 523 A.2d 799 (1987).

Can I be found guilty of a DUI for sitting in the driver's seat of my car which is NOT running?

It other factors, as referenced above, are proven to establish that the defendant was in actual physical control of the car, yes, but a person charged with DUI should understand that sitting in the driver's seat of a car which is not running is insufficient by itself to prove actual physical control.  Commonwealth v. Price, 416 Pa.Super. 23, 610 A.2d 488 (1992).

Philadelphia DUI Attorney | Lawyer to Fight Pennsylvania DUI Charges

If you or a loved one is charged with a DUI in Pennsylvania, an effective defense attorney must thoroughly review all evidence against the person charged.  Although all may seem lost after being charged with a DUI in Pennsylvania, there are fact patterns which will work in a defendant's favor.  An effective defense attorney will exploit any weaknesses in the prosecution's case, including any potential arguments that the person charged was not driving, not in actual physical control / operative control, or a combination of these factors.

If facing a DUI charge in Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, or Northampton County, contact attorney Criminal Law Team today to learn how operative control can affect your DUI case.