Various states across the country have their own definitions for what constitutes person's operation of a motor vehicle for purposes of the DUI statutes. Some states define it as "driving," while others, use terms like "operation," and "actual physical control."
But what about Kentucky? -- Well, I'm glad you asked!
The controlling case is Wells v. Commonwealth, 709 S.W.2d 847 (Ky. App. 1986). It outlines the four factors a court must look at in order to determine whether or not a person operated or was in actual physical control of a motor vehicle. The factors are:
(1) whether or not the person in the vehicle was asleep or awake;
(2) whether or not the motor was running;
(3) the location of the vehicle and all of the circumstances bearing on how
the vehicle arrived at that location; and
(4) the intent of the person behind the wheel.
Basically, it is a totality of the circumstances analysis. The court will look at the factors above along with any other facts and circumstances, and determine whether or not that constitutes "operation" or "physical control."
In my current sleeping driver case, the key was turned to the 'on' position with the engine running and her headlights were on (that's why the officer presumably decided to investigate the scene.) It was a cold February night, and she wanted to stay warm in her vehicle. She was not intoxicated and there were no field sobriety tests done nor does the Commonwealth have an Intoxilyzer result.
So why in the world is she being charged with a DUI?! Good question, dear reader. Results remain to be seen. The facts are great, the argument appears flawless, now it's up to the prosecutor to dismiss the case.
Thanks for readin' and God bless.
If you require assistance with a DUI, expungement, traffic ticket, or other criminal charges, please contact me or call me at (502) 931-6788.
The DUI Guy