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If you are asleep at the wheel, can you also be DUI?

A man was arrested last week on a DUI. That is not that remarkable a fact. That he was arrested for his fifth DUI was not the most remarkable element of the arrest. What most people will find interesting in this case is that he was arrested while asleep behind the wheel.

He was found after a security officer saw him "drive through grass." A police officer arrived and when he opened the door of the vehicle, he was found asleep, with the car in drive and the man's foot on the brake.

You may think, well, the keys were in the ignition, the engine was running, so it makes sense that even if the car was not moving, he could be charged with a DUI. However, Tennessee's DUI law is broader than that.

The statute, T.C.A. section 55-10-401(a) states, "[i]t shall be unlawful for any person or persons to drive or to be in physical control of any automobile or any motor driven vehicle on any of the public roads and highways of the State of Tennessee…"

The courts in Tennessee, like many other states, have found that drivers are considered to be in "control" in cases like this where the keys are in the ignition and the car is running. But control has also been found in cases where the car is off and the keys are in the driver's pants pocket.

Tennessee uses a "totality of the circumstance" test to determine the question of actual physical control. If you have been charged under these circumstance, you should obtain legal advice, as all of the details of your arrest could play a role in the determination of issue of physical control and whether you can be convicted of a DUI.

Wsmv.com, "Man found asleep at the wheel arrested for 5th DUI," Nancy Adams, February 3, 2015

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