Can You Get a DUI for Sleeping in Your Car in SC?

Can you get a DUI for sleeping in your car in South Carolina?

In some states, you can be arrested and charged with driving or “operating” under the influence for sleeping in your car while drunk or for just turning on the heater or the radio while you sit or rest in the vehicle.

However, the law in South Carolina is worded differently, and you must be “driving” the vehicle before you can be charged with “driving” under the influence. Below, we will talk about why sleeping in your car is not DUI in South Carolina, including:

  • The elements of DUI and why they do not apply to sleeping in your car,
  • The difference between “driving” and “operating,” and
  • What happens if police find you passed out behind the wheel of your vehicle.

DUI While Sleeping in Your Car?

Before you can be convicted of driving under the influence in SC, a prosecutor must prove each of the elements of DUI – including that you were driving the vehicle – beyond any reasonable doubt.

What are the elements of driving under the influence in SC?

Driving under the influence charges, found in SC Code § 56-5-2930, require proof that a person was:

  1. Driving,
  2. While under the influence of alcohol or other drugs,
  3. To the extent that their faculties to drive were materially and appreciably impaired.

In South Carolina, driving means driving – not sleeping, sitting, turning the knob of the heater, or listening to the radio.

The Difference Between DUI and OUI (Operating Under the Influence)

In State v. Graves, the SC Supreme Court explained that, although other states chose to criminalize operating under the influence, South Carolina decided to criminalize driving under the influence:

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.

What does “drive” mean?

While “operating” could be interpreted to mean operating the radio or heater on a vehicle, “driving” requires the vehicle to be in motion and under the control of the defendant:

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).

Can You Get a DUI if You are Drunk and Passed Out Behind the Wheel?

What if you are drunk and passed out behind the wheel when a police officer walks up to your vehicle?

State v. Graves

In State v. Graves, a highway patrol officer found a man “leaning over the steering wheel and asleep,” “with the engine running and the transmission in gear. The officer asked the man to step out of his car, “at which time the car started moving and had to be stopped by Patrolman F.O. Buffkin who was also in attendance at the scene.”

Although the officer testified that he “observed a strong odor of alcohol about the respondent as well as some physical impairment,” the SC Supreme Court held that did not matter and reversed the conviction because there was no evidence that the defendant was driving. The officer “was of the opinion respondent was in control of the car,” but he also testified that “he did not see respondent driving the car.”

What if There is Other Evidence of Driving?

It doesn’t matter if there is evidence of intoxication unless the state can also prove that the defendant was driving the vehicle at the time they were intoxicated.

For example, a “top official with the South Carolina National Guard was charged with driving under the influence” after being “found unconscious in his car.” As in State v. Graves, the vehicle was in drive, but the vehicle was not moving because the defendant’s foot was on the brake.

The defendant “failed a sobriety test” and “tested .09% on a breathalyzer test,” the officer smelled alcohol after the car window was rolled down, and the defendant “confessed to the officer he had a “few” whiskey drinks earlier in the night, and he also had recently taken a prescription medication for high-blood pressure and high cholesterol levels, in addition to hydrocodone following a recent surgery, and a sleep aid.”

None of this evidence of intoxication would matter, however, except the defendant also “told police he was taking the trash from his apartment to the dumpster,” which, unless the statement was suppressed, could provide the state with the evidence it needs at trial to establish the driving element of the DUI charges.

In State v. Osbourne, in 1996, the SC Court of Appeals held that a “confession” of driving, when there is evidence to corroborate the “confession,” is evidence sufficient for a DUI conviction.

Questions About DUI Charges in SC?

If you have been charged with DUI, DUAC, or another DUI-related offense in Myrtle Beach, Conway, or anywhere in the Horry County area, you may have valid defenses to the charge or there may be grounds to get your case dismissed. You may also have strict deadlines to request an administrative hearing if you have an implied consent suspension because of a DUI arrest…

Contact Conway, SC, DUI Lawyer Johnny Gardner now at (843) 248-7135 for a free consultation to find out how we can help.


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