Question: Do I have to be driving a vehicle to be charged with DUI in Maryland?
Answer: You do not have to actually be behind the wheel of the vehicle or have the vehicle even on or even be driving to get a DUI in the state of Maryland. Actual physical control—there’s a case called Atkinson in Maryland that basically outlines tests for the officers and for the judges to do in regarding if you were using the car as a shelter or if you were actually using it as a motor vehicle.
One of the biggest issues is was the car on. One of the other issues is are the keys in the ignition, is the driver asleep, is the driver behind the wheel, is the car warm to touch, if the car is off—there’s a bunch of different factors—is the person parked on the side of the road or in a parking space. The judge will look through those particular prongs of the tests of Atkinson to decide whether the person was in actual physical control of the motor vehicle.
I recently tried a case where the driver was asleep and it wasn’t even actually the driver—well, he allegedly was the driver—he was sitting in the passenger seat asleep, and the car was on, though, and the keys were in the ignition, and the judge deemed that he was driving because he was pulled over in the turn lane and asleep.
So you do not need to be actually driving the motor vehicle to be considered operating it or having physical control, and that’s a common misconception that people don’t seem to understand. So, if you are going to pull over on the side of the road, if you do realize you’ve had too much to drink, get into the backseat or the passenger seat and turn the car off. And that should basically help.