According to media reports, a SC National Guard official was charged with driving under the influence (DUI) last month after he was “found unconscious in his car.” But can you be charged with DUI in SC if you are passed out behind the wheel?

The first element that prosecutors must prove in a DUI case in SC is that the person was driving. If they were driving “while under the influence of alcohol to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired,” they are driving under the influence.

Does that also cover sleeping while in the car with the engine running?

Is it DUI if You Are Passed Out Behind the Wheel?

According to the article, the National Guard official’s car was running and it “was in drive, but he had passed out behind the wheel with his foot on the brake so the car wasn’t moving.” The officer said that the driver looked “dazed and confused,” “fumbled around” while trying to open his car window, and that the officer smelled alcohol in the car.

The driver later took the breathalyzer test and blew a .09 (not a terrible result, but higher than the .08 needed to prosecute someone). The report says that he also admitted to drinking whiskey and taking prescription medications.

Is that enough to convict a person of driving under the influence?

State v. Graves

In State v. Graves, the SC Supreme Court made it clear that SC’s driving under the influence statute requires proof of driving.

In Graves, the officer found the defendant behind the wheel with the engine running and the transmission in gear, and the driver was “leaning over the steering wheel asleep.” When the officer told the driver to get out of the car, the car started moving and another officer had to jump in to stop it.

Despite all of this, the SC Supreme Court held that the driver could not be guilty of DUI because there was no evidence that he was driving at the time of the arrest – the car only started moving because the officer ordered the driver to get out of the car.

This certainly helps the National Guard official who was arrested and charged with DUI, but is it enough?

State v. Osbourne

According to the report, the National Guard official also “told police he was taking the trash from his apartment to the dumpster.” If this is true, the State can attempt to use this admission as evidence that he was driving.

If there are no admissions made by the driver, it is clear that there can be no conviction for DUI in SC if the officer did not see the person driving and if there are no witnesses who will say the person was driving.

It is possible, however, that the admission could be used as “proof of the corpus delicti” – when a suspect makes a “confession” or an “admission” that establishes the offense (driving while intoxicated) and there is enough evidence to corroborate the incriminating statement, it can be used in court.

For example, in the 1996 case State v. Osbourne, the SC Court of Appeals affirmed a DUI conviction where the defendant “confessed” that he had been in an auto accident, was visibly intoxicated, admitted to drinking before the accident but not after the accident, and blew a .14 on the breathalyzer.

The officer also testified that he found the defendant’s car which had run off the road and hit a speed limit sign, and, although abandoned, the hood was still warm to the touch.

On the other hand, if the defendant doesn’t make any statements or if the statements are inadmissible, the elements of DUI in SC are not proven.

I have seen similar cases dismissed, for example where a defendant was found passed out at the wheel in a parking garage with the car in reverse but stopped (crashed, really) against the wall of the parking garage, and the driver passed out at the wheel, but they did not make any statements to the police. Implied consent hearing = suspension rescinded. DUI charges = dismissed.

DUI, DWI, OUI, OWI – What’s the Difference?

Why is driving required for a DUI in SC?

While some other states chose to enact laws that criminalized “operating under the influence,” SC has limited DUI convictions to people who are driving while intoxicated. As the Court in State v. Graves explained:

Although South Carolina adopted the phrase “drive any vehicle within this state” from the approved Uniform Act as revised in 1930, several states adopted this provision with amendments that also prohibit the “operation” of an automobile while in an intoxicated condition. While choosing to define both “driver” and “operator”, the 1949 General Assembly by Act 281 of 1949, 1949(46) 466, proscribed only driving a motor vehicle while intoxicated, and did not proscribe operating.

Drive means the vehicle must be “in motion,” while operating has a much broader meaning and could include any manipulation of the vehicle’s controls (even operating the radio, in some states):

The distinction between these terms is material, for it is generally held that the word “drive”, as used in statutes of this kind, usually denotes movement of the vehicle in some direction, whereas the word “operate” has a broader meaning so as to include not only the motion of the vehicle, but also acts which engage the machinery of the vehicle that, alone or in sequence, will set in motion the motive power of the vehicle. Flournoy v. State, 106 Ga. App. 756, 128 S.E. (2d) 528 (1962), Gallagher v. Commonwealth, 205 Va. 666, 139 S.E. (2d) 37 (1964)…

Of the two terms, “driving” is given the stricter construction, and in numerous cases it has been held that to be guilty of driving a vehicle while intoxicated, the defendant must have had the vehicle in motion at the time in question. While in a few cases the term “operating” has been given a similar limited construction, “operating” has been more liberally construed in other cases to include starting the engine or manipulating the mechanical or electrical agencies of a vehicle (footnotes omitted).

For all DUI related offenses in SC, driving is an element that must be proven – the vehicle must have been in motion or they were not “driving.” Other types of “operating” under the influence offenses, in other states, include:

• OUI – operating under the influence (Connecticut, Maine, and Massachusetts);
• OVUII – operating a vehicle under the influence of an intoxicant (Hawaii);
• OWI – operating while intoxicated (Indiana, Iowa, Michigan, and Wisconsin);
• OVI – operating a vehicle under the influence (Ohio);
• OWVI – operating while visually impaired (Michigan); and
• OWPD – operating with the presence of drugs (also Michigan).

Although there are many ways to potentially get a DUI dismissed in SC, the absence of one of the elements of the crime is the most straightforward – if you were not driving, or if you were driving but your “faculties to drive a motor vehicle” were not “materially and appreciably impaired,” you are not guilty of DUI in SC.

DUI Defense Attorney in Charleston, SC

Charleston, SC DUI defense attorney Grant B. Smaldone focuses his law practice on criminal defense and DUI defense. Because we don’t spend our time handling car wrecks or divorces, our attention is not divided between different areas of the law, we try more cases, and we feel that we can do a better job for our criminal and DUI defense clients.

If you have been charged with DUI, DUAC, or any DUI related offense in the Charleston, SC area, call SC criminal defense lawyer Grant B. Smaldone now at (843) 808-2100 or contact us through our website to talk to a Charleston, SC DUI defense lawyer today.