What constitutes “Operation” for DUI purposes in Kentucky?

1910468It is not every day that you get a client who is being charged with a DUI while they were sleeping in their vehicle. Now that begs the questions, can you really be guilty of a DUI if the vehicle was not moving and you were unconscious or sleeping, even though you were located in the driver’s seat?

Various states across the country have their own definitions for what constitutes person’s operation of a motor vehicle for purposes of the DUI statutes. Some states define it as “driving,” while others, use terms like “operation,” and “actual physical control.”

But what about Kentucky? — Well, I’m glad you asked!

In Kentucky, the DUI statute KRS 189a.010(1) begins as follows: “A person shall not operate or be in physical control of a motor vehicle anywhere in this state[.]” That is quite vague. What do those words mean? Well, unluckily, Kentucky courts have not defined those terms, but what they have done is given us some guidelines as to what constitutes physical control and operation.

The controlling case is Wells v. Commonwealth, 709 S.W.2d 847 (Ky. App. 1986). It outlines the four factors a court must look at in order to determine whether or not a person operated or was in actual physical control of a motor vehicle. The factors are:

(1) whether or not the person in the vehicle was asleep or awake;
(2) whether or not the motor was running;
(3) the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and
(4) the intent of the person behind the wheel.

Basically, it is a totality of the circumstances analysis. The court will look at the factors above along with any other facts and circumstances, and determine whether or not that constitutes “operation” or “physical control.”

In my current sleeping driver case, the key was turned to the ‘on’ position with the engine running and her headlights were on (that’s why the officer presumably decided to investigate the scene.) It was a cold February night, and she wanted to stay warm in her vehicle. She was not intoxicated and there were no field sobriety tests done nor does the Commonwealth have an Intoxilyzer result.

So why in the world is she being charged with a DUI?! Good question, dear reader. Results remain to be seen. The facts are great, the argument appears flawless, now it’s up to the prosecutor to dismiss the case.

Thanks for readin’ and God bless.

If you require assistance with a DUI, expungement, traffic ticket, or other criminal charges, please contact me or call me at (502) 931-6788.

The DUI Guy

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It happened in Henderson County Kentucky which is about 2 hours from Louisville. Would you be able to represent him here? I’ve included my good email that I use for correspondence. No spam or sharing please.

Susan Hirst

My neighbor’s daughter is in a situation like this. She went out drinking the other night and fell asleep in her car. It wasn’t on or anything. The police charged her with DUI. Now she has to find a defense lawyer to represent her.


I would not consider that a DUI. I do not think they should have even been allowed to charge someone with a DUI without any evidence. According this article there was no field sobriety test done and there are no results from a breathalyzer. (I was once give a breathalyzer test because I had tire fly light up valve covers on my wheels. Which I honestly do not think constitutes a belief that I have been drinking (I passed it of course as I had not been drinking)). If I were tired and driving I would pull over park and… Read more »

Larry Forman

Thank you for your feedback, Casey. That really is a scary thought that anyone can be breathalyzed and get a DUI if the Officer suspects that you have been drinking even if he never saw you move the car. I have been breathalyzed before in my life, but never got a DUI because I drive sober. It was just really late at night, I was parked, and was unable to make it home from the nightclub because I was tired. The scarier thing is that my client in the above scenario was she was very sleepy and the officer simply… Read more »

Bryan Burton

Yes I was wondering how can a State Ploice officer can arrest a person in side a store & charge them with DUI? When keys & motor wasn’t running! A call would be greatly be a help to talk with you on this!!!!!

Larry Forman

That is a hell of a situation! I have never heard of driving a store while intoxicated! Call me 502-931-6788


Okay so here’s a dilemma my brother is facing in the commonwealth of Kentucky. He takes medication for various issues. He drove about 4 blocks to a pop machine to get a drink to take his evening meds because his pipes are frozen and he has no water. He got the pop, took a drink and took his meds. Pulling out from the parking lot there’s a car with nothing on but parking lights, it’s 11pm. He’s blind in one eye so doesn’t immediately see the car. When he does he takes a ditch to avoid a collision, end up… Read more »

Larry Forman

The answer is simpler than you think: Cops can do whatever the hell they want on the STREET.

However, the question then becomes: Will it hold up in court?

Based on your facts sounds like he might have a good case. Call me if this happened in Kentucky 502-931-6788


Most officers will not arrest for a DUI without some proof that the driver was in fact impaired and also in physical control. A sleeping driver will not be arrested if there are no facts to support he or she was drinking and driving. Granted, there are officers out there who are not the best and crazy things do happen – it’s possible but it’s also rare. There are multiple signs that could give an officer suspicions that someone could be impaired including: where the car was parked, if the car was in gear, if there is vomit or urine… Read more »

Luke dennison

I was asleep in the driver’s seat waiting for my sister to pick me up. My keys was in the passager seat. They charged me with a DUI. That going to stick?


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