Sleeping it off. Can I get into trouble for sleeping drunk in my car?

Question: I heard that I could get arrested for DWI in New York if I am sleeping while drunk in my car. Is that true?

Answer: Some police officers will absolutely arrest you for sleeping drunk in your car, but only under certain circumstances. Here is how you can act responsibly and avoid an arrest while sleeping it off.

New York State law (VTL 1192) says that you cannot operate a motor vehicle while intoxicated, or while your ability is impaired by alcohol, while on a public or private road. Let’s break that down a little.

Operating a motor vehicle = turning the car on; you don’t have to be in motion to be operating a car.
Public or private road = any roadway, driveway, or parking lot with four or more parking spaces that has access to a public road, except for driveways on private property improved with a one or two-family residence.
Intoxicated = BAC of .08% or higher (.04% for CDL holders)
Ability Impaired by Alcohol = BAC somewhere in the .02 - .07% range, depending on how old you are, and what type of license you hold.

The most common “sleeping in your car” scenario is when you have had too much to drink at the bar, and it is too late to get a cab. You don’t have many options, so you head to your car. If you climb into your back seat and go to sleep, you aren’t going to have any problems. Your keys are nowhere near the ignition, and you are nowhere the vehicle’s controls. The problem for Western New Yorkers is that you can only do this about four months a year before hypothermia becomes a real issue.

If you leave a bar in Geneseo at 11:30 a.m. on a Wednesday night in January, you have a problem. Turbo Taxi probably shut down an hour earlier, and you can’t walk back to Rochester, so you head to your car. The problem you will experience once inside your car is that you are going to freeze, and I mean FREEZE. Unless you turn your car’s heater on, you might as well be sleeping on the sidewalk in 18° F weather. On the other hand, if you put the key into your car’s ignition and turn the heater (and thus also the car) on, you are operating a motor vehicle.

Under the statute, if you turn on your car while you are intoxicated or impaired by alcohol, you are breaking the law. Your car, emitting exhaust in a parking lot in the middle of the night is almost certainly going to eventually attract the attention of the police. They will knock on your window, wake you up, and there is a very solid chance that you will be arrested for being drunk while sleeping in your car, all because you didn’t want to die of hypothermia.

There is, however, some good news. New York Courts have carved out an exception to the operation element of the law. If you turn on your car for the sole purpose of staying warm, the courts say that you have a defense to the charge of DWI. If you are lucky enough to be arrested in a jurisdiction where a lawyer is sitting as judge, or in a county where the local court judges know a little about the law, your “heat defense” should be successful at a probable cause hearing, or maybe at trial (if your case gets that far). Eventually, your lawyer should be able to exonerate you, but at what cost? The loss of your license while the case is progressing? Thousands of dollars in attorney fees?

If you can avoid turning on the car, I would avoid it. If it is so cold outside that turning on the heat becomes a safety issue and you really need to turn the car on, I would immediately get into the back seat and lay down. If a sheriff’s deputy does approach your car, she will report that she found you laying down in the back seat, which is an obvious sign that you are trying to sleep. Hopefully, common sense will prevail and she won’t arrest you.

The Rochester DWI Attorneys at Jeannie D. Michalski, LLP have successfully represented people who weren’t actually driving on DWI charges in Monroe and Livingston Counties. If you are facing a DWI charge because you were drunk in your car, but not actually driving it, please call us for a free consultation at our office in Brighton or our office in Avon. You can reach us at (585) 351-2500.