Sleeping It Off in Your Car Can Be DUI (and a Statutory Presumption that Defendants with Prior DUIs who Refuse Breathalyzer Tests Were “Under the Influence” Is Not PLAINLY Unconstitutional)

Anthony Bell v. District of Columbia (decided February 25, 2016)

Players: Chief Judge Washington, Associate Judge Thompson, and Senior Judge Newman. Opinion by Judge Thompson. Joseph A. Scrofano for Mr. Bell. Trial Judge: A. Franklin Burgess, Jr.

Facts: Police found Bell asleep in the driver’s seat of a car that was parked outside a nightclub shortly after closing time, with the car keys in his pocket. They had difficulty rousing him, and upon removing him from the vehicle, noted a strong smell of alcohol and slurred speech by Bell. Bell failed the standardized field sobriety tests, was arrested and advised of his rights under D.C.’s Implied Consent Act, D.C. Code § 50-1905. He refused to consent to a breathalyzer test. Bell’s defense was that he was tired from working long hours and in a very deep sleep from which it was difficult to awake. He said he refused the breath test because he had consumed “a couple of beers” and “figured that it would register[.]” Finding “overwhelming” evidence that Bell—who had a prior DUI conviction— was under the influence, the trial judge found him guilty of DUI.

Issue 1: Was Mr. Bell “in actual physical control of the vehicle” as required by the DUI statute, D.C. Code § 50-2206.11?

Holding 1: Yes. Following the factually indistinguishable case of Berger v. District of Columbia, 597 A.2d 407 (D.C. 1991), the Court of Appeals concluded that Bell was in “actual physical control” of his car because he was alone, behind the steering wheel, and had the car keys in his pocket. Thus, he “was capable of starting the vehicle should he have awakened and, in his impaired state, made a decision to drive.”

Issue 2: Does the Implied Consent Act’s statutory presumption that individuals with a prior DUI conviction who refuse a breathalyzer test are “under the influence” unconstitutionally shift the burden to such defendants to prove their innocence?

Holding 2: Not in this case. Reviewing for plain error, the Court of Appeals held that the statutory presumption is not plainly unconstitutional because it is not plainly a mandatory presumption. Without deciding this unpreserved issue “definitively,” the Court noted that despite the mandatory-sounding statutory language, the presumption appears to be treated in practice as a constitutionally acceptable permissive presumption. The Red Book, for example, instructs that when a defendant with a qualifying conviction refuses to submit to chemical testing, jurors “may, but are not required to, conclude that s/he was under the influence.” In this bench trial, moreover, the judge’s ruling made clear that he did not treat the presumption as mandatory in finding Bell was under the influence.

Of Note:

• The Court does not “definitively” hold that the Implied Consent Act’s presumption is always constitutional. If, in a case where the presumption applies, the jury is not instructed with the Red Book’s permissive language, or in a bench trial the judge makes findings that suggest she felt bound by the presumption to find the defendant “under the influence,” defense counsel should object on constitutional grounds.

• The Court of Appeals noted that Bell was found “in the upright position of one intending to drive, rather than a reclined position” that might indicate “he lowered his seat back in order to sleep for a while.” One could use this footnote to attempt to distinguish other cases of intoxicated persons sleeping in a parked car’s reclined driver’s seat or where there are other indications that the person had no intention of driving the car. FT

Read full opinion here.