Criminal Law

What Does It Mean to be "Driving"?

This is the second post in our “Arkansas DWI Answers” series. (For the first post, go here.) Our goal with this series is simple: We want you to understand Arkansas DWI and DUI laws so that you can make informed decisions. (For example, you’ll be able to make the informed decision to hire us to handle your DWI or DUI issue.)

Shameless marketing aside, we know that Arkansas DWI laws can be intimidating and confusing (and absurd, to be honest). There’s also a lot of bad information out there. (Your cousin Harold, for instance, who I’m sure has good intentions, may not be the best person to ask.) Today we’ll take some time to work through what it means to be “driving” for the purposes of “driving while intoxicated.”

arkansas-dwi-vehicle

This question actually breaks into three separate parts, but they’re close enough to only require one blog:

1. What does it mean to be “driving” while intoxicated?

2. What is a “motor vehicle”?

3. Where can you receive a DWI?

What Does it Mean to Be “Driving” While Intoxicated?

According to the text of the Arkansas DWI law, you may receive a DWI for either operating a motor vehicle or being in physical control of a motor vehicle.

First thing’s first: You do not have to be driving to be charged with driving while intoxicated. (If you are not a lawyer, it may surprise you to know that most things in the law don’t make much sense, such as the fact that you don’t have to be driving to get a DWI. But “OOBIPCOAMVWI” (Operating or Being in Physical Control of a Motor Vehicle While Intoxicated) is, I’ll admit, a little difficult to pronounce.

There’s not a bright line here, but one thing makes a big difference as to whether you’re in physical control of a vehicle: The keys. If the keys are in the ignition and you’re in the car, you’re almost certainly in physical control. If the keys are not in the ignition and you’re in the car, you’re probably not in physical control.

The issue is how easily you will be able to take control of your vehicle because, of course, that’s when someone becomes a danger. (As a practical matter, then, if you decide to get drunk and fall asleep in your car, make sure you take the keys out of the ignition and put them in, say, the glove compartment.)

What is a “Motor Vehicle”?

The definition of a motor vehicle for DWI is the same as it is for car registration purposes: “[E]very vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.” Ark. Code Ann. § 27-14-207(6). And a “vehicle” is “every device in, upon, or by which any person or property is, or may be, transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks.” Ark. Code Ann. § 27-14-207(8).

There aren’t many cases on what the definition of a vehicle is, although there is actually a case that says you can receive a DWI for driving an A.T.V. while drunk. (On that note, check out Justice Corbin’s delightfully contrarian dissent in this case—Fitch v. State, 313 Ark. 122. You will not be disappointed.)

Where can you receive a DWI?

You can basically receive a DWI anywhere in the State of Arkansas. It doesn’t matter if it’s a highway, public roadway, private roadway, or even a roadway at all. If you’re in control of a motor vehicle, you’re fair game.

The Takeaway

As should be clear from these points, you don’t fight an Arkansas DWI on the issue of whether you’re driving or whether what you’re driving is a motor vehicle. Arkansas DWI law defines both of these things broadly, so the fight is almost always on whether you’re actually intoxicated.

Under Arkansas DWI law, then, you could conceivably be given a DWI for standing on the back of a commercial walk-behind mower in the middle of the woods. It is, after all, a motor vehicle. Tractors, riding mowers, golf carts, and go-carts are an even tighter case.

Drink at home. If you find yourself in a bind, call us.

Request A Consultation