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Atkinson revisited

On Behalf of | Nov 22, 2013 | DUI |

One of the most important DUI cases in years was Atkinson.  It set forth the defense of using your vehicle for shelter when you leave a bar or party and are under the influence or impaired.  I hear lawyers talk about the case as a defense anytime a defendant is found asleep in the car.  The case does not go that far.

I had occasion to sit and reread it this week in anticipation of using it as a defense on Tuesday.  My client walked out of the bar and got in her car, turned on the heat, and went to sleep.  Hours later the police beat the car to death to wake her up.  She is still drunk, fails the SFSTs and the breath test.  However she was in front of a bar sleeping it off and made no attempt to drive.  The prosecutor knew the case and exactly what it stood for.  She called the police officer, verified the client was asleep in front of the bar, and the dismissed the charges.  The prosecutor made sure she had not driven to the beltway and parked on the shoulder, with no alcohol in the car or bar nearby in walking distance.  That is not necessarily an Atkinson defense.  The case specifically says it is not a defense to drive drunk and then stop and pull over.  There are occasions where there might be an Atkinson defense based on the amount of alcohol consumed, the time frame, and the absorption phase of the alcohol consumed.  You can leave a bar not impaired and then start to feel it and pull over before it “hits” you.  It is a much harder case to defend and an expert might be necessary.