On August 11, 2011, the Utah Court of Appeals affirmed the conviction of a man who did the right thing.  He felt he was too intoxicated to drive safely, so he pulled over and went to sleep.  The Court recited some of the facts as: 

"On July 27, 2007, at about 2:30 a.m., Officer Salvador Toscano discovered Prawitt asleep in the driver’s seat of a vehicle. The vehicle was legally parked on the side of the road, and Prawitt’s leg was hanging out the window. Toscano determined that Prawitt had actual physical control of the vehicle and was under the influence of alcohol. Toscano then arrested Prawitt for driving under the influence. A subsequent search of Prawitt’s vehicle revealed open beer containers."

The whole issue was whether Prawitt had actual physical control of the car.  His leg was out the window, the keys were not in the ignition, he was asleep, the car was not running.  The Court looked at common factors in the legal community to determine that the Trial Court made the right decision.

Applying the Richfield factors to the facts of this case, Prawitt was discovered asleep in the driver’s seat of the vehicle. The vehicle was legally parked on the side of the road, and the motor was not running. Prawitt was the sole occupant of the vehicle. He appeared capable of operating the vehicle, and it appeared to be capable of being driven. No other persons were present, nor did Prawitt claim that anyone had left, and Prawitt indicated to Toscano that he had in fact driven the vehicle to the location where it was discovered.

Here is the interesting part, the public policy issue.  Under this law of actual physical control, the law actually encourages a person who feels intoxicated to make every attempt to drive home.  If you are found asleep in your vehicle because you did the right thing by pulling off and being safe, you will be charged the same as the guy who was on the road driving drunk.  The law promotes drive drunk, don’t pull off.  The Court in this case recognizes this and seems to not like it one bit.  The Law is the law.

Although we believe the State satisfied its burden of establishing only probable cause, we note the possible perverse consequence this decision may have of encouraging drunk drivers to hedge their bets against getting caught and keep driving, rather than pull over and “sleep it off” in their vehicles, see Richfield, 790 P.2d at 93. The Richfield court recognized the ”compelling argument that intoxicated drivers should be encouraged to pull off to the side of the road to sleep it off,” but also categorized this consideration as “more appropriately [in] the province of the legislature.”5 Id. While the results in this case and in Richfield may have unintended consequences, we are nonetheless bound by Richfield under the doctrine of horizontal stare decisis.

Perhaps there should be a lesser crime for a person that is intoxicated in or about a vehicle or a safe harbor exception.

The case is State v. Prawitt, 2011 Ut App. 261.