Driving is the initial requirement for prosecution under a DUI offense and is defined under two major categories: "driving" or "operating" and exercising some type of control over the vehicle even though it is not moving.
Some court decisions have defined control to mean a domination or regulation of a vehicle. This applies as long as the person is keeping the vehicle restrained or is in the position to regulate its movements and the engine is truly running. Although arguably if the vehicle is not moving, the person is not actually driving, courts have determined that actual physical control does include a person sitting in a motionless vehicle with the engine running. In fact, other decisions have upheld convictions and license suspensions where the person was sitting in a vehicle with the engine not running.
Still, in many jurisdictions a person is considered to have been "driving" only if the person steered or exercised control over the vehicle while it was in motion. Even if the engine is not running, courts have determined that a vehicle’s operability is irrelevant and steering a towed vehicle does in fact constitute driving.
If the defendant is not observed driving it may be shown using certain evidence that the defendant drove the vehicle to its present position. A prime example of this circumstance is a single vehicle accident. While the defendant may not be in actual physical control, operating, etc., of the vehicle, circumstances may be such that he drove or controlled the vehicle prior to the crash.
Ultimately, various courts have established diverse decisions on the DUI driving element. To prove the DUI driving element, some require the vehicle to be in motion, while others have found that motion is not necessary if the engine is running. It has even been held that sleeping in a vehicle with the engine running constitutes the element of driving.
If the officer does not directly observe the driving element, the prosecution must use statements made by the DUI defendant linking him to the driving. This is generally the case when the officer arrives at the scene of a crash and the vehicle is not drivable.
Culpability does not always end with the driver of the vehicle. Some statues extend the element of control to one who owns or is in custody of the vehicle if the owner allows a person under the influence of intoxicating liquor or with a blood alcohol level reaching .08 or 0.10 percent or greater blood alcohol content, to operate the vehicle. As long as the owner or individual in custody of the vehicle knows or reasonably should know the driver is under the influence of intoxicating liquor or had an illegal blood alcohol level, he or she is in violation of the statute.
Regardless of the term used in the statute or the language used in the court decision, every time a driver is driving a vehicle on a road or highway, it is held that the driver is “driving,” “operating,” and “in control” of the vehicle.
Only when a vehicle is not involved in actual in-motion driving, may the defendant raise the issue of whether he was “driving” or “in control” of the vehicle. Courts have developed a list of factors to determine whether the defendant was driving a vehicle that is found motionless:
1- Was the defendant conscious or unconscious?
2- Was the defendant asleep or awake?
3- Was it day or night?
4- Was the defendant trying to move the vehicle?
5- Was the defendant parked on private property or on a public road?
6- Was the defendant in the driver seat?
7- Were there other occupants in the vehicle?
8- Were the headlights on or off?
9- Were the windows up or down?
10- Was the defendant capable of driving the vehicle?
Essentially, the courts have held that while a defendant may be in control of a vehicle and capable of driving it, he/she is not driving it if he/she pulls the vehicle over to the side of the road to avoid driving under the influence. It seems courts have been more compassionate when defendants have shown evidence of taking action to sober up and avoid a dangerous DUI situation.