Whenever I meet with a new potential DUI client, we discuss the conversation that they had with the police officer on the side of the road.  I have never been told that my potential client refused to engage in conversation with the officer.  

If I had been there to advise my client, I would have told the client to simply hand over their license, registration and insurance, and not to say a single word, or agree to do a single preliminary breath test or field sobriety test.  The penalty for not complying is a small fine for refusing the PBT, but no points, and it is not a crime.

Yes, the officer may become rude, push, get upset, and probably just arrest you without probable cause to do so.  Think about it, unless you car is all over the road or you crashed, what evidence of committing a drunk driving offense have you really offered?

Ok the cop says you smell like alcohol, one alcohol doesn't have a smell, and two it's not against the law to drink if you're over 21 or to drive a car after drinking.  Your eyes are bloodshot, you're sweaty; well maybe you were out all night dancing and it's 3 am - you're not going to look your best.  

Without speaking to the officer, which brings in slurred speech, admission of drinking, coming from a bar, confusion of where you are, or where you are going, the officer has very little.  If you don't give him a BAC reading or field sobreity tests, it's very likely that even if the truth is that you're above the limit, or breaking the law, the law only looks at what the officer knew or perceived at the time of the arrest; it doesn't matter if you blow over the limit later on after the arrest.  

If you are reading this, it may be too late to follow the above "play" but keep it in mid for the future, as it is one of the most important plays in my DUI Playbook.  This isn't meant to help people get out of breaking the law, it's meant to protect your rights, your family, your job and your future, and put the burden on the cop to have enough to arrest you; after all your taxes paying for his/her training, uniform, squad car, weapon and salary; don't make life easy on them. 

Many people are surprised to hear that you can be arrested for drunk driving despite being asleep in your own car.  Most people believe a DUI arrest only happens out on the roads with some sort of traffic violation.  In Michigan, I see a lot of arrests of people "sleeping it off"  

As a former prosecutor, I can tell you that these kinds of facts are not easy on the prosecution. Most DUI cases involve visible driving, a traffic violation, pulling the car over, some field sobriety and chemical tests - those facts go in front of a jury and get sorted out.  It becomes more difficult for a prosecutor to proof his elements (driving and "being drunk" under the law) when the person arrested was sleeping, and not driving.  

​The most recent case on this topic is People v Wood, 450 Mich 399, 404–406, 538 NW2d 351 (1995), where defendant was found asleep behind the wheel with a beer between his legs at a fast food drive-through. The court redefined the operation of a vehicle in OWI cases in terms of the danger that it poses and stated that a person is operating a motor vehicle as a motor vehicle when he or she has put the vehicle in motion or in a position posing a significant risk of causing a collision or damage to property and that the operation continues until the vehicle is returned to a position where it poses no such risk.

If I have a sleeping client, I look for a few things. 

1 - Where was the car parked?
2- Was it "parked" in that the car was in park, or is my client's foot on the break?
3- What if any statements did my client make about previous driving?
4 - Is the engine on, if not, did the police observe signs of driving such as hot tires or hot engine?
5 - Is there any independent evidence of driving such as an eyewitness?

Assuming my client is in a parking lot, legally parked, with the car in park, we're off to a good start.  We're not going to have many options if my client is passed out at a traffic light or in a fast-food drive thru.  

If the engine is on that's still alright, especially during colder months when common sense says someone might need heat in the car to sleep comfortably and safely.  Many times a case can be won on motion depending upon what came out of my clients mouth when confronted by the police.  These "conversations" do not require Miranda as under the law these conversations are part of a police investigation and the driver is not yet in custody.  If the client blurts out that they were drinking at a bar and they parked to fall asleep, then we're not going to win the motion.  

The Stephen case clarified that where there is sufficient evidence that the driver operated the vehicle while intoxicated at some point before the encounter with the police, a conviction can stand. In this case, the court found sufficient evidence to support an OWI charge where defendant admitted that he drove to a fairground to sleep off the effects of having too much to drink, “struck the parking log while attempting to leave the fairgrounds, and turned off the engine and went to sleep after he was unable to dislodge his truck.”

If the client doesn't say anything about previous driving then the prosecutor will have a very difficult time providing enough evidence to overcome a suppression motion that a jury could find that the client legally operated that evening and to ultimately find that person guilty. 

If you or someone finds themselves in this grey area of driving, but not driving, let's look at the police reports, review the videos and audio and see what we're working with.