Next time you decide to sleep it off…beware of a DUI arrest

You’ve been out at the bars with your buddies drinking all night.  You spent more than you planned and your DD has left the building.  You decide that the best bet is to sleep it off in the car until you are safe to drive home.  It’s cold outside so you climb into the driver’s seat, turn the key, and crank the heat.  As you nod along to the music, you drift off to sleep.

The next thing you know, you are rattled awake by the banging on your window and look up to see a cop standing outside your window.  You roll down the window and before you can attempt to explain your situation, you are cuffed and arrested for DUI.  You rack your brain as to what you could possibly have done that would cause the officer to come your way, and nothing comes to mind.

The Fourth Amendment of the Constitution states that individuals are to be free from illegal search and seizure.  This means that the government cannot impede your liberties without reasonable suspicion that criminal activity has or is about to be committed.  In most DUI cases, this reasonable suspicion arises when the officer observes a driver speeding or weaving, or committing some other traffic violation.  Without some reasonable suspicion, and officer cannot conduct a traffic stop.  A seizure occurs when, through a show of official authority, a government official limits your liberty such that an ordinary citizen would not feel free to terminate the encounter.  When you are driving down the road and a cop flips on the red and blues, you are considered to be seized.

In situations like the one above, an officer can contact the vehicle where a driver is sleeping inside on what officers call a “welfare check.”  This is a type of consensual contact that doesn’t require reasonable suspicion because it is not considered a “seizure” under the Fourth Amendment.  During a welfare check in a scenario like the one above, an officer will usually stop behind the vehicle without activating lights and/or sirens and approach and arouse the driver.  At this point, there hasn’t been a seizure of the driver because the contact is considered, under the law, to be consensual.

Imagine a similar situation where an officer pulls up behind the same parked car with a sleeping person in the driver’s seat and flips on the emergency lights before contacting the driver.  This contact is no longer consensual because an ordinary citizen would not feel free to drive away from the officer.  Up until very recently, the seizure occurred at the point in time when the officer turned on his lights.  Why does any of this matter?  Because if an officer seizes the driver, who is sleeping in a legally parked car and not committing any crime, without reasonable suspicion, and the driver is subsequently arrested for DUI, much if not all of the evidence could be suppressed for violation of the Fourth Amendment.

What has changed?  The Colorado Supreme Court recently decided, in People v. Tate, 11SC382,that a seizure cannot occur until the person is aware of the “show of authority.”  In other words, if a cop pulls up behind the driver who is sleeping in his car, and flips on his lights, he can approach the driver without requiring reasonable suspicion of criminal activity.  However, when the officer wakes the driver up to conduct an investigation, the officer still must have reasonable suspicion.

In People v. Tate, Mr. Tate was asleep in the driver’s seat of his vehicle, with the engine running and his window was rolled down.  Mr. Tate’s car was parked with a car in front and cars on either side.  An officer pulled up behind his vehicle, and blocked the car in.  At this time, the officer had no reasonable suspicion of any criminal activity.  The officer approached the driver’s side door and observed Mr. Tate asleep in the driver’s seat, and several empty beer cans on the passenger seat.  The trial court found that there was no reasonable suspicion for the contact and the arrest and all evidence was suppressed.  However, the State appealed the ruling and the Supreme Court reversed, stating that Mr. Tate was not seized until he was woken up by the police officer and at the time that the officers roused Mr. Tate, reasonable suspicion of DUI had developed based on the fact that he was asleep in the driver’s seat with several empty beer cans in the car. Because no seizure occurred until after reasonable suspicion developed, there was no violation of Mr. Tate’s Fourth Amendment rights.

The lesson to be learned here is that even if you aren’t driving; don’t think that you are safe to sleep it off in the car.  Best bet is always to take a cab.

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