Answer: He can be arrested for that. Whether or not he will be found guilty after trial depends on a lot of factors, but you do not have to be actually driving down the road to get arrested for DUI. You could be asleep in the car with the engine running and that would be enough for them to arrest you. Here’s why:
The Delaware DUI law is found at Title 21 of the Delaware Code, in Section 4177. Subsection (c)(3) says DUI means driving, operating, or having actual physical control of a vehicle while under the influence.
The Delaware Supreme Court, in a 2000 opinion in a case called Bodner v. State*, wrote that, “A person can have actual physical control . . . without either operating or driving the vehicle. [P]hysical control is meant to cover situations where an inebriated person is found in a parked vehicle under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property.”
In fact, the Bodner Court developed a jury instruction on the actual physical control requirement. If your husband were to fight his charge at trial in the Delaware Court of Common Pleas or Delaware Superior Court, the Judge would instruct the jury that they have to decide if he was in “actual physical control” of the car while under the influence. The judge would probably read the following instruction to the jury:
In considering whether or not the defendant was in physical control of the motor vehicle while under the influence of alcohol, you may consider:
a. defendant's location in or by the vehicle,
b. the location of the ignition keys,
c. whether the defendant had been a passenger in the vehicle before it came to rest,
d. who owned the vehicle,
e. the extent to which the vehicle was operable, and
f. if inoperable, whether the vehicle might have been rendered operable without too much difficulty so as to be a danger to persons or property, any other facts or circumstances bearing on whether or not the defendant was then in physical control of a motor vehicle which was or reasonably could become a danger to persons or property while the defendant was under the influence of alcohol.
So we would need to look at all the facts and circumstances of the case to determine whether your husband really was in actual physical control of the car at the time of the arrest.
Matt Stiller is the Delaware DUI Defender. He represents the accused in all criminal cases in DE. He handles cases from traffic tickets to death penalty capital murder, and he has a special interest in defending Delaware drunk driving charges. If you or a family member has been arrested or charged with DUI, please contact Matt for a free consultation today.
*Bodner v. State, 752 A.2d 1169 (Del.2000).