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As I understand it, if one is found inside one's car with the keys while drunk, even if asleep, one is as guilty of drunk driving as if one was actually driving. If one finds oneself over the limit, without a place to sleep but with access to one's car is there a way to legally use the car for shelter for the night?

Some ideas that come to mind, that may or may not make a legal difference:

  • Leave the car keys with the bartender, sleep in the car without access to the keys, collect the keys in the morning.
  • Put the keys under a rock some distance from the car
  • If two people found themselves in this situation, they could each sleep in the others car, keeping their own keys with them
  • Use the car to support a tarp, and sleep outside the car under the tarp

As far as jurisdiction, I am particularly interesting in England and Wales, but it seems the sort of thing that must come up all over the world so answers for any jurisdiction would be interesting.

SCD
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User65535
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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on [meta], or in [chat]. Comments continuing discussion may be removed. – Dale M Nov 20 '23 at 19:24

11 Answers11

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In New Hampshire (USA) our law was as you stated until 2020. That is, if a person over the legal limit was sleeping it off in a car and either had the car keys in their possession or had unrestricted access to the car keys, they were deemed to be in "actual physical control" of the vehicle and could be convicted of operating a motor vehicle under the influence.

The nonsensical nature of this law eventually led to public lobbying for a change. In 2020 the law was changed so that as long as the drunk person is not in the driver's seat, no law is broken. They could even leave the car running so they don't freeze to death while they sleep it off.

The law, NH RSA 265-A:1(VI) now contains this provision in its Definitions:

"Drive," or "attempt to drive," or "actual physical control" shall not include sleeping, resting, or sheltering in place in a vehicle parked in any place where parking is permitted, provided that the person is not seated at the controls of the vehicle.

MTA
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TL;DR: You can sleep drunk in your car but you shouldn't give the impression that you're attempting to drive.

The German criminal code says, in section 316:

Whoever drives a vehicle in traffic (sections 315 to 315e) although they are not in a condition to drive the vehicle safely due to having consumed alcoholic drinks or other intoxicating substances incurs a penalty of imprisonment for a term not exceeding one year or a fine, unless the offence is subject to a penalty under section 315a or 315c.

Of course, the question is what exactly "drives" means (and whether "drives" is an adequate translation; to me, it seems like "drive" actually means moving the car, while the original German word "führt" could be interpreted as "controls")

A German administrative court ("Verwaltungsgericht") said in this decision:

Ein Fahrzeug führt derjenige, der es unter bestimmungsgemäßer Anwendung seiner Antriebskräfte unter eigener Allein- oder Mitverantwortung in Bewegung setzt oder das Fahrzeug unter Handhabung seiner technischen Vorrichtungen während der Fahrbewegung durch den öffentlichen Verkehrsraum ganz oder wenigstens zum Teil lenkt, wobei der etwa vorhandenen Motorkraft als Ursache der Bewegung keine Bedeutung zukommt.

translation by deepl.com:

A vehicle is driven by anyone who sets it in motion under their own sole or joint responsibility using its driving power as intended, or who steers the vehicle in whole or at least in part using its technical equipment while driving through public traffic areas, whereby any engine power present is of no significance as the cause of the movement.

This should mean that a car that doesn't move is not driven.

In this case (in German), a man sat in the driver's seat, started the motor and turned on the light, then stopped the motor again as his wife said it might be better to walk. Some officers in a passing police car saw that, and the man ended up being convicted; this conviction was overturned by the highest German court. So, as long as the car isn't moving, you're not driving, and §316 doesn't apply.

Still, running the motor can get you in some trouble with the police, and winning your case in court after several weeks or months of having your license suspended probably isn't what you'd call a favorable outcome. And indeed, several non-juristical websites give general advice that you can sleep in your car, drunk, if you make sure that it's unreasonable to assume you're making an attempt to drive. For example here, section 44, the magazine says (again translated by deepl and slightly edited to reflect the original formatting):

Item 44: "I'm not allowed to spend the night drunk in the car." Actually, this is permitted in principle. However, it must not appear that the vehicle was being driven under the influence of alcohol or is to be put into operation. If this is the case, the person sleeping drunk could be charged with attempted driving and thus an attempt to commit a criminal offense. However, if you follow the following two instructions, you are on the safe side.

Firstly: Never sleep in the driver's seat. The best (and usually most comfortable) place to sleep is on the back seat, but the front passenger seat is also fine, as the car cannot be started from there without further ado. And secondly: do not insert the ignition key. Not even to switch on the heating or air conditioning. The vehicle will then be more ready for operation than it should be. Cars with keyless go systems are permanently ready to drive, but the ignition should remain switched off to avoid misunderstandings.

Jirka Hanika
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Guntram Blohm
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Don’t be in the driver’s seat

If you are in the back seat or passenger seat or boot (trunk), you aren’t in control of the vehicle.

s112 of the Road Transport Act 2013 says:

(1) A person must not, while under the influence of alcohol or any other drug—

(a) drive a vehicle, or

(b) occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or

(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)—occupy the seat in or on a motor vehicle next to a learner driver who is driving the vehicle.

Dale M
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    Please add in which jurisdiction your answer applies. – quarague Nov 18 '23 at 06:52
  • People got arrested in the back seat, too. But I like your suggestion of hiding in the trunk. Don't think anyone ever got arrested for that. – Therac Nov 18 '23 at 08:21
  • But in the trunk you might get “rescued” at 3am :-) – gnasher729 Nov 18 '23 at 08:55
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    Especially without a jurisdiction, this answer sounds like it's based on gut feeling rather than actual legal analysis. Yes, it's a reasonable argument for your lawyer to make, but is there any actual evidence/support that the legal system actually interprets the statutes that way? – R.M. Nov 18 '23 at 13:12
  • @R.M. It’s definitely safer to sleep in the back seat. Even if not 100% safe. – gnasher729 Nov 18 '23 at 15:18
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    This sounds like "folk wisdom" to me, not the way the law works. – Wastrel Nov 18 '23 at 16:19
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    I note that your quoted statute is more permissive than your large text: it allows you to be in the driver's seat, as long as you don't drive the vehicle or attempt to put it in motion. – ruakh Nov 19 '23 at 09:10
  • I want to know how to start the engine (to run the heater) and remain in compliance with that law. Modern cars won't let you start the engine without depressing the brake pedal. If it can't be done the law is creating drunk drivers. – Joshua Nov 19 '23 at 19:56
  • @Joshua drinking alcohol and starting the engine is creating drunk drivers. The law just punishes that. – Dale M Nov 19 '23 at 21:34
  • @DaleM You're saying that if a crime requires A+B+C+D+ E=driving, therefore A+B+C+ D=starting the engine is that same crime. By that same logic, A+B+C is that same crime too: Drinking and C=owning a car in the first place creates a drunk driver. Why stop there? A+B must be the same crime as well: drinking and B=being a person with sufficient wealth to purchase a car if one wanted to, creates a drunk driver. – Harper - Reinstate Monica Nov 19 '23 at 23:54
  • @Harper-ReinstateMonica sure, if that’s how you wanted to write the law. – Dale M Nov 20 '23 at 06:57
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Yes, it is legal to sleep in your car when drunk, but...

This is the law (Road Traffic Act 1988, section 4) that covers the offence:

(1)A person who, when driving or attempting to drive a [F1mechanically propelled vehicle] on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.

(2)Without prejudice to subsection (1) above, a person who, when in charge of a [F1mechanically propelled vehicle] which is on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.

(3)For the purposes of subsection (2) above, a person shall be deemed not to have been in charge of a [F1mechanically propelled vehicle] if he proves that at the material time the circumstances were such that there was no likelihood of his driving it so long as he remained unfit to drive through drink or drugs.

Section (3) allows for circumstances such as sleeping in your car, or retrieving items from your car when drunk, however note that the act says that the person must prove that "the circumstances were such that there was no likelihood of his driving" which is a difficult criterion for someone who has chosen to sleep in their car to demonstrate.

Toby Speight
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Jack Aidley
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    ...in the driver's seat. Any other seat has no likelihood. – Trish Nov 19 '23 at 15:19
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    It should be fairly easy to show someone else has the key. Harder to prove you don't have the spare key, but certainly possible. – Toby Speight Nov 19 '23 at 15:50
  • @Trish "Any other seat" doesn't work, because the test is "...so long as he remained unfit to drive...". It's trivial to slide across a seat and drive while still impaired. – Jack Aidley Nov 19 '23 at 18:12
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    @Jack Many cars in the last 40 years have bucket seats and a console in the middle, making it almost impossible to move from the passenger's to driver's side. Back seats even moreso. – Harper - Reinstate Monica Nov 19 '23 at 23:23
  • This is the answer, certainly for UK. If you can demonstrate you're not in a position to drive you should be fine. If you are asleep across the back seat and the keys are in the glove box, you're not about to start driving your car. If you're asleep in the drivers seat with the keys in the ignition, you could reasonably be thought to be 'prepared' to drive. Interestingly this was a discussion I had when car keys were still keys. I'm not sure how modern keyless-entry / keyless-start electronic fobs would affect this judgement. – ThaRobster Nov 20 '23 at 10:00
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    @Harper-ReinstateMonica not "almost impossible" to slide across. Moderately awkward at most for someone reasonably flexible. I've often had to do it when parked tight against something on the driver's side. Now I drive a van where it's trivial, though getting through from the back is tricky – Chris H Nov 20 '23 at 10:23
  • I'd completely avoid the driver's side door for this reason - if the police pull up as you're fumbling for your keys and about to try and open it, you're probably "attempting to drive" - the passenger door, you have more of an argument about – lupe Nov 20 '23 at 16:18
  • @lupe exactly. And you can always say "Well I couldn't possibly sit in the driver's seat, because as you can plainly see, my friend Harvey is there. Whenever we drink, Harvey always insists on driving." – Harper - Reinstate Monica Nov 23 '23 at 01:23
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According to section 236 of the Criminal Code, you have to "drive" the vehicle in order to commit the crime. Driving is understood as starting (ie. putting it in motion) or controlling the already moving vehicle. Also, intent matters. You have to be aware of that you are going to drive while under the influence.

Note that the official translation uses "operates" instead of "drives": It's an incorrect translation of the Hungarian verb vezet (drives); you may "operate" the vehicle, eg. turn on the radio or seat heating, provided you don't drive it.

Riwen
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Different jurisdictions have different criteria for both "driving" and "drunk", sometimes beyond a sane person's understanding.

What you can (almost?) everywhere do safely:

  • get a sober and driving-licensed person at the driver's seat. The person may be awake or sleeping.
  • set the key, the card, the fob or whatever (if any) controlling device the car uses in this person's control.
  • sleep as much drunk as you want using the other available seats, the trunk, the roof, whatever.
fraxinus
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  • At least in The Netherlands, you can't sleep in a car in public place, or generally without permission from the landowner. The location in the car doesn't matter, nor whether you are drunk or sober. – gerrit Nov 20 '23 at 07:42
  • @gerrit I will have a hard time visiting The Netherlands by car, then. When I drive, everyone else gets asleep and I will get a ticket ~30' after the border control. On the other hand, somewhat south where I live, highways have "resting places" at some intervals and you are in fact encouraged to stop and take a rest or nap if you feel too tired to drive safely. Don't you have something similar? – fraxinus Nov 20 '23 at 08:00
  • From what I understand, napping is allowed, but sleeping overnight is not. It's not against the law, but (almost?) all local municipalities have rules against wild camping, which includes sleeping overnight in a car. A friend got fined napping at night as the officer considered he was sleeping overnight. He considered formally contesting the fine arguing he was napping and not sleeping overnight, but decided it wasn't worth it. – gerrit Nov 20 '23 at 10:23
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    @gerrit I'd assume that the consequences of sleeping in your car, at night, are much more lightweight than the consequences of drunk driving. – Guntram Blohm Nov 20 '23 at 17:18
  • @GuntramBlohm Yes, certainly. – gerrit Nov 20 '23 at 20:50
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In , , , sleeping overnight in a parked car is interpreted as wild camping and therefore prohibited in most places (some motorway rest stops in The Netherlands are reportedly allowed up to 24 hours, and some places prohibit sleeping in parked cars entirely). Napping might be allowed. Whether you are napping or sleeping overnight is in practice up to the interpretation of the officer. A friend in The Netherlands was fined when he was napping at 02:00 (sober) and refrained from contesting his fine on the claim that he was napping and not sleeping overnight.

Dutch language source.

The rule does not depend on being drunk or sober nor on what seat in the car you occupy.

However, the consequences of sleeping in a car are surely much less severe (low-moderate fine) than the consequences of drunk driving (very high fine, loss of license, or worse).

gerrit
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  • I did not study the law but Czech newspapers for motorist specifically warn drivers from sleeping in their cars abroad. I have never heard of it being problem not abroad. The articles normally say while here it is not a problem, it can a problem in these countries. For the Czech Republic only the natural protected areas and private properties are mentioned as problematic. – Vladimir F Героям слава Nov 20 '23 at 13:51
  • @VladimirFГероямслава I've removed the Czechia label. – gerrit Nov 20 '23 at 14:22
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I'm a UK resident. The advice I received from a policeman one time, was that it was the intent to drive whilst drunk which was arrestable.

So if you are sleeping in your car, how do you show that you intend to not drive?

This policeman said, "Put your keys on the dashboard, on the passenger side."

Neither I, nor this policeman, is a lawyer.

Stewart
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  • If you have a key fob you should try how far away the fob lets you start the car or drive the car. – gnasher729 Nov 18 '23 at 15:25
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    My car has a key-free ignition. You can start the car with the keys anywhere in the car. – Richard Nov 18 '23 at 19:09
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    I am a UK resident. I think the logic is...

    If you have driven while drunk, then you are guilty of drink-driving. Even if someone spiked your drink, your are guilty.

    If you realise you may be drunk, and stop, and arrange things so you can drive no further, then you have shown the wish to do the right thing. You are still guilty of drink-driving but the arresting officer may recognise this and not test you. This has to be convincing: you can't just have a little sleep if you feel woozy, then pick up the keys again.

     – Richard Kirk Nov 19 '23 at 13:03
  • @Richard I received this advice decades ago, before remote fobs were common. – Stewart Nov 19 '23 at 15:54
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    @Stewart It sounds dodgy advice even so. A modern car security system could open the car but prevent it from being driven for 12 hours. This would provide proof that the owner did not want to drive the car. But I don't think this is a defence in law, even if a policeman might accept it. IANAL. – Richard Kirk Nov 19 '23 at 17:26
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    Ask the policeman how to run the heater (or air conditioning if in a hot area). – Joshua Nov 19 '23 at 19:57
  • Why does every drunk have to sleep in the driver's seat? @Joshua use an EV, many of them have either "Dog Mode" or "Overheat protection" where they will run the climate control even though the car is off and locked. Battery cost is about 1% per hour. – Harper - Reinstate Monica Nov 19 '23 at 23:29
  • @Harper-ReinstateMonica: I found when shopping for EVs that most do not have it. – Joshua Nov 19 '23 at 23:33
  • @Joshua well I understand, all will let you put it in accessory and run the climate in the normal way, though admittedly we are "keys-in" at that point. But in accessory, motion not possible. – Harper - Reinstate Monica Nov 19 '23 at 23:47
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    Publicly display where your keys are located? Sounds like a good way to get car jacked. – candied_orange Nov 20 '23 at 13:24
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    I'd probably go with "put your keys somewhere very inconvenient to reach" - put them in the boot, by the spare tire, in the glove compartment, etc. If you have sufficient presence of mind, and know this is what you're about to do, record yourself opening the car, and putting the keys away, and talk through what you're doing, stating the time as well.

    You might not avoid being charged for drink driving, but it should be really useful evidence if you are, showing intent not to commit a crime, but merely to sleep.

     – lupe Nov 20 '23 at 16:07
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    INAL nor a cop. But it seems to me if you want to sleep warm in your car then using the club might show your lack of intent to drive. Done this way the cop can see what's going on before hassling you. Lock it's key in the trunk if you must – candied_orange Nov 22 '23 at 14:08
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Logically it must be possible in theory to enter (and presumably sleep in) a vehicle whilst drunk, otherwise you couldn't (for example) enter a motor home or a coach whilst drunk.

Obviously the courts are alert to devious would-be drink-drivers who are stopped in pub car parks with the engine running, but claim they were intending to heat the car up by running the engine and then go to sleep in the driver's seat.

I think the general principle is that to either enter the driver's seat and/or to insert the ignition key when drunk, would cause grave risk of arrest and conviction - regardless of what you say your intentions actually were.

Going to the boot to fetch bedding and then entering the back seat to sleep is perfectly lawful in principle. I have myself gone to sleep across the dropped back seats and boot of my hatchback car in the past like this, though I was careful to avoid any scene that might seem ambiguous.

Steve
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    What if one affixed a cable lock to the ignition of an automatic car in such a fashion that it could not be removed from "PARK". In northern climates, sleeping inside a running car may not be without risk, but the risk of asphyxia from a properly maintained vehicle may be less than the risk of hypothermia if the heater isn't used. – supercat Nov 18 '23 at 19:06
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    @supercat, obviously cases turn on the evidence and the circumstances, but operating any of the controls in a manner which a driver might, or even just entering the driving seat at all, may create an impression about your intentions which is difficult to rebut. Mentioning hypothermia can easily suggest your real intention or propensity was to drive the car home. The judges are not credulous with this offence at all, and an intention to drive is not exactly the question, it is whether you were "in charge" - a nebulous and more expansive concept. – Steve Nov 19 '23 at 00:01
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    @Steve : are there no exigent circumstances? For example, if a sudden blizzard is incoming, then you are legally required to freeze to death, and the crime of turning on the engine to then stay on the back seat is important enough that not even the necessity for saving your life (or someone else's life) can be considered? – vsz Nov 19 '23 at 00:42
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    @Steve could you add a jurisdiction tag, and mention any relevant laws/decisions? – Paŭlo Ebermann Nov 19 '23 at 02:44
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    I meant to say the transmission of an automatic-transmission car, such that shifting the vehicle out of "park" would be impossible without removing the lock. – supercat Nov 19 '23 at 02:51
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    @vsz, it's probably quite unusual to be in a blizzard yet also drunk at the wheel for some legitimate reason. It's not that the courts won't consider the circumstances - ultimately, they might even let you off drink driving, if the necessity was sufficiently great, and you were unlucky enough to be caught in that very event. But as I say, they're not credulous. Their starting point is that a drunken man has no business inside a car with the ignition keys. (1/3) – Steve Nov 19 '23 at 12:14
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    When a drunken man with the keys does get into his own car, driving is far more common than sleeping, either immediately, or after he decides he cannot possibly sleep in those circumstances and must go home. If the court accepts sleeping was your only possible agenda, they will not convict, but I can't over-emphasise the practical standard which is that a careful and law-abiding driver does not have any usual reason to be about his own car when drunk. (2/3) – Steve Nov 19 '23 at 12:15
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    I obviously can't reference what I'm about to say in terms of legislation, but the very act of approaching the car is already considered to be deeply concerning behaviour, capable of proving the offence if not successfully rebutted. Driving is considered self-evidently the most likely intention of approaching, of entering the driving seat, and of starting the engine, with each of these preceeding steps becoming even more compelling evidence in turn, and it's for you to convince otherwise if you say not. (3/3) – Steve Nov 19 '23 at 12:17
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    @Steve : you don't necessarily have to be so drunk that you can barely stand and barely know who you are. There are jurisdiction with zero (or extremely low) tolerance where it's illegal to drive even if you have so little alcohol in you that it barely affects you. And about the rarity of the situation: with billions of humans on the planet, one-in-a-million chances happen all the time. – vsz Nov 19 '23 at 12:24
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    @supercat, the car doesn't have to move, or be immediately movable, for you to be considered "in charge" as the driver. You don't even have to be in it - just being in the vicinity can be enough to be treated as "in charge". As I say in another comment, it's better to treat being in your own car with the keys whilst drunk, as being prima facie illegitimate and proof of the criminal offence, and from there on you're asking for the court to grant your excuse out of general indulgence. It's the same as carrying a jemmy on the street at night - there may be a good excuse, but you have to prove. – Steve Nov 19 '23 at 12:33
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    @vsz, I don't know about those jurisdictions, but in England and Wales there's an appreciable margin. A rule of thumb is that the average person could manage a pint of beer immediately before driving. And I believe another rule of thumb is that a healthy body processes about half a pint an hour. – Steve Nov 19 '23 at 12:42
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Drunk driving laws require two facts, that the BAC of the operator exceeds a legal limit, and that the operator was causing the vehicle to move. While you can do extreme things like sleeping on the passenger side or in the back, that's completely unnecessary. If where you are parked and sleeping is legal for parking and sleeping, then you're doing nothing illegal while parking and sleeping. The alcohol doesn't change anything, because all three of these elements are perfectly compatible as far as the law is concerned.

While Dave's answer is perfectly fine, I'd say it's not as pragmatic as what I'd suggest. First, keep a pillow and blanket in the car. When you park, make sure it's a legal parking area and sleeping/overnight stays are allowed, turn off the engine and lights, disengage the seatbelt, engage the parking brakes, slide and recline the seat back as far as it goes, make sure the ignition key is in the OFF position, and use the pillow and blanket for comfort and warmth. The most important thing, however, is to not move the car an inch if the cops know you're likely impaired.

If an arrest is made without clear evidence that an individual was operating the vehicle leading up to the arrest while also impaired, that is a case that's likely going to be thrown out of court or will end up with a not guilty verdict. There may even be an opportunity for a wrongful arrest lawsuit, depending on the jurisdiction.

lawful-n00b
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    Being drunk in the driver's seat in the UK is risky. I think you don't actually have to move the car, but have the ability to move it. I might be wrong, but police will think exactly the same. I would not take the risk, but get into the back. If you need to enter the car from the front to get into the back, I'd try to do that on the passenger site. And having to go to court is highly inconvenient even if you are found not guilty. If that happens then you should have a lawyer and that won't be free. – gnasher729 Nov 18 '23 at 00:50
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    @gnasher729 Road Traffic Act 1998 reads: a person shall be deemed not to have been in charge ... if he proves that at the ... time ... that there was no likelihood of his driving it I'm not a lawyer, but I'm pretty sure one could prove in a court that sleeping is a defense against being in charge of the vehicle. – lawful-n00b Nov 18 '23 at 01:03
  • @gnasher729 And yes, I'm aware that lawyers aren't free, and no, I have never been to the UK, but from what I've heard, UK police officers are generally "nicer" than they are in the US. – lawful-n00b Nov 18 '23 at 01:04
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    "no likelihood of his driving it" requires proving inability to move the car - e.g. you still can drive a car by pressing the coupling and rolling down a hill, and a key in the ignition can be turned in a moment, meaning the car is driven. In fact, a person sitting in the driver seat with key in the ignition is a clear indicator that the person drove till the moment they shut down the car for the nap. – Trish Nov 18 '23 at 01:43
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    @lawful-n00b in many jurisdictions, the criteria is “being in control” irrespective of if the vehicle moves or not. – Dale M Nov 18 '23 at 02:19
  • Once you’re asleep you are probably fine. But a police officer can see you entering the car or leaving the car when you’re not asleep. – gnasher729 Nov 18 '23 at 08:58
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Assuming you have a vehicle with an actual key, and not a wireless fob, put the keys in the trunk, get in the back seat and lock the doors. If the cops come knocking, do not answer questions.

jmoreno
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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on [meta], or in [chat]. Comments continuing discussion may be removed. – Pat W. Nov 19 '23 at 13:43