Cedar Rapids OWI Lawyer: Operation Defined

There has been some speculation that self-driving cars will end drunk driving in the United States. Technological Utopians are trumpeting the arrival of cars that will not veer from their respective lanes along with their operators’ intoxication and poor muscular control—thus obviating the need for a passive alcohol sensor system entirely. A car dealer body man once told me that one of the first cars equipped with an active lane departure safety system was “a drunk driver’s wildest dream.”

Not so fast.

In Iowa, it’s not clear that self-driving cars or those with passive or even active safety systems will herald the end of criminal prosecution for operating while intoxicated (OWI), known as DUI or DWI in other states. Operation is the key phrase. Under Iowa Code § 321J.2, drunk driving OWI requires operation—not driving. And operation may be proven by showing “physical control” over a motor vehicle.

For example, in State v. Mussehl, No. 03-1989, 2005 Iowa App. LEXIS 393, at *6-7 (Ct. App. May 11, 2005)(unpublished), the Iowa Court of Appeals reviewed undisputed facts that a defendant’s wife woke up, left the house, and found the defendant, her husband, passed out in the driver’s seat of a truck. Defendant’s wife testified that she turned the ignition to start the truck “to get some heat in there for him”  and also turned on the headlights and corroborated testimony about an inoperable gearshift indicator. Id. There are other similar cases out there about defendants being found slumped against their steering wheels with the engine running and jammed gears. 

In Mussehl, the Iowa Court of Appeals found that the passed-out defendant, who had not driven the car nor turned the ignition, was “in physical control” of the idling truck. Id. Citing to Iowa Model Criminal Jury Instruction 2500.6, the Court held:

“On the question of whether Mussehl was operating the vehicle, there is no dispute that Mussehl was in the driver’s side of the truck, the truck was running, and both the headlights and brake lights were on. This undisputed evidence is sufficient to establish that the vehicle was being operated. Cf. State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (finding, on sufficiency-of-the-evidence review, woman found ‘unconscious in the driver's seat, with all controls within her reach,’ keys in the ignition, parked along side road had been ‘operating’ vehicle); State v. Murray, 539 N.W.2d 368, 369-370 (Iowa 1995) (finding person slumped over steering wheel with engine running was ‘operating vehicle’ and noting ‘actual physical control’ or operation does not require vehicle movement or actual driving of vehicle); State v. Fox, 248 Iowa 1394, 1400, 85 N.W.2d 608, 611 (Iowa 1957)  (finding person was ‘operating’ vehicle where he was passed out in vehicle with engine running, arms over steering wheel, one foot on brake pedal and car in drive gear); State v. Webb, 202 Iowa 633, 637, 210 N.W. 751, 752 (1926) (holding starting of engine is first step in operation of car and defendant not entitled to instruction that motor vehicle not being ‘operated’ when standing still); but see Munson v. Iowa Dep't of Transp., 513 N.W.2d 722, 724-25 (Iowa 1994) (finding person asleep in vehicle was not ‘operating’ vehicle where ignition in "on" position and radio on, but there was no evidence of engine running).

State v. Mussehl, No. 03-1989, 2005 Iowa App. LEXIS 393, at *5-6 (Ct. App. May 11, 2005).

High end imports have been augmenting human operation of motor vehicles for years—Tesla, Mercedes, Lexus, and even new models of the redesigned Chrysler Pacifica minivans park themselves and correct for lane departure—steering down the highway with the assistance of cameras and software designed to identify lane markings and send signals to operate assistive motors in steering systems. In short, they help drivers steer. While some passive safety systems tug on shoulder safety belts when a driver veers over the center or fog lines, cars like these take control and steer the car back on track. Cars like Tesla incorporate that technology into what could be identified as a self-driving system. To the extent that this is a task shared by an operator in the driver’s seat, it seems apparent law enforcement need not attribute system failures to the car rather than the driver when determining “reasonable suspicion” and “reasonable grounds,” respectively.

“The reasonable grounds test is met when the facts and circumstances known to the officer at the time action was required would have warranted a prudent person's belief that an offense had been committed.”  State v. Owens, 418 N.W.2d 340, 342 (Iowa 1988)(citing Crosser v. Iowa Dep't of Pub. Safety, 240 N.W.2d 682, 685 (Iowa 1976)).


So the initial stop won't have to distinguish between a mistake a self-driving car makes, a broken gearshift, or a passive or a drunk driver as long as a reasonable prudent person standing in the shoes of the officer can assert that suspicion exists to conduct a traffic stop. 


However, a jury must dispel all reasonable doubts that a person was actually under the influence even if the outward appearances of operation augmented by technology appear to be amiss. 


If you or a loved one has been arrested for OWI in Iowa, contact David A. Cmelik Law PLC at 319-389-1889. 

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