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Armstrong and other judges have relied on a 1986 appeals court ruling that lists four factors to consider in these types of cases: Whether the suspect in the vehicle was asleep or awake; whether the engine of the suspectâ€™s vehicle was running; the vehicleâ€™s location and all of the circumstances explaining how the vehicle arrived there; and the intent of the person behind the wheel.
In that 1986 case, the defendant was arrested on a DUI charge after he was found asleep behind the wheel of a van located in a motel parking lot. The van was parked, the keys were in the ignition, and the engine was running. The transmission was in neutral and the emergency brake engaged. There was alcohol and an empty container in the van and breathalyzer tests indicated the defendant was drunk. But the appeals court found there was insufficient evidence that the man had operated his vehicle while he was intoxicated.
In his Oct. 21 ruling, Armstrong criticized the vagueness of the appellate courtâ€™s ruling, saying it is nearly impossible in many instances to determine what someoneâ€™s intention was when they are found asleep or passed out behind the wheel.
â€œHow am I supposed to figure out what the intent is?â€ he asked during the hearing, noting that Howard may have been trying to drive home or might have just decided to sleep it off inside his vehicle.
The county attorneyâ€™s office is arguing that subsequent Supreme Court rulings have found that judges can look at circumstantial evidence and the reasonable inferences made from it, according to court records. Prosecutors contend a reasonable look at Howardâ€™s situation would show his intent: He was in his truck drunk at 5 a.m. with his hands on the steering wheel and gear shift and a foot on the gas pedal.
Given that, the prosecution said it is clear Howard had been drinking at 4th Street and went to his truck to leave, before passing out in a position where he could have easily knocked the vehicle into gear and hit another car or pedestrian.
â€œWhy were these hazards even a possibility?â€ the county attorneyâ€™s office asked in its motion to the circuit court. Because Howard was â€œexercising physical control over his vehicle while drunk.â€
But Howard wrote in a report he filled out for police that he left 4th Street Live at about 2 a.m. and was â€œjust sleepingâ€ when officers found him.
While prosecutors across the state have lost many of their appeals of these type of DUI dismissals, higher courts have sided with them in some instances.
For example, a Jessamine County woman who police found arguing with people while outside her vehicle in a parking lot, was charged with DUI after witnesses claimed she had been in her SUV getting ready to back up, before she got into an argument and climbed out.
While the womanâ€™s attorneys argued she had no physical control of the vehicle when she was arrested and had simply turned on the SUV with her remote keyless entry device, the Court of Appeals ruled in 2009 that witnesses saw her brake lights on for several minutes and that she was intending to drive.
Reporter Jason Riley can be reached at (502) 584-2197.