There is a lot to say about alcohol. A number of my cases have root issues that come directly from too much of it.
Sleeping behind the steering wheel after you have had too much to drink is a bad idea. You might think you are doing the right thing by getting in your car, going to sleep, and not driving. However, sitting behind the wheel can put you in physical control of the vehicle, and that can support a charge of reckless endangerment, reckless driving, or driving under the influence. There are technical legal points to argue here, but people found drunk behind the wheel do face action. Some state codes are stricter than others on this specific question.
If you are too drunk to drive home, get a ride. If you cannot get a ride, the back seat is a better position than the driver’s seat, because physical control is assessed on the full circumstances: where you were sitting, where the keys were, whether the engine was running, and what you said about your intent. None of those facts is dispositive on its own, and no seating position guarantees that a court will find you were not in control.
Which Article Applies
I prosecuted these cases on active duty. I defend them now. As an Army prosecutor at Fort Hood and with the 2nd Infantry Division in South Korea, the law in an alcohol and vehicle case is rarely the hard part. The facts are: who was where, who had the keys, how long the vehicle had been sitting, and what got said before anyone thought to stop talking.
Article 113 of the UCMJ, Drunken or Reckless Operation of a Vehicle, Aircraft, or Vessel, is the article on point.
A note on the number: this offense was located at Article 111 before the Military Justice Act of 2016 renumbering took effect on January 1, 2019. Article 111 now addresses leaving the scene of a vehicle accident. If you are reading older material, including older posts on this site, you may see the former number.
Under Article 113, a service member can be charged with operating or controlling a vehicle while drunk or impaired. The Manual for Courts-Martial defines drunk and impaired as any intoxication sufficient to impair the rational and full exercise of the mental or physical faculties. Military law also accounts for blood alcohol concentration.
Field sobriety testing is evidence, not a verdict. Performance on those tests is one input the government uses to argue impairment, and it is also one of the more frequently challenged inputs, on grounds ranging from how the test was administered to conditions at the scene to underlying medical or physical factors. Failing one does not establish impairment as a matter of law, and passing one does not foreclose the charge.
To reach a conviction, the government must show that the accused was operating or in physical control of the vehicle while drunk, impaired, or at or above a specified blood alcohol level.
Where the incident occurred affects who acts first. It does not decide whether you can be court martialed. Article 5 of the UCMJ states that the Code “applies in all places,” so conduct off the installation remains within court martial jurisdiction, and an Article 15 or a court martial referral is available to the command whether the stop happened on base or on a state highway. What changes off base is that civilian authorities usually have jurisdiction too, and often move first. The same conduct can therefore produce a state case, a military case, or both, and which of those you are facing changes what your counsel does first.
Physical Control Is Broader Than Driving
I have handled a range of cases involving drinking and vehicles. We have defended service members found asleep behind the wheel after a night of drinking. Some were still impaired when found; some were not.
One case involved a service member who spent a weekend afternoon drinking and then decided to work on his pickup truck. There was an issue with the throttle. He turned the truck on to test the engine’s throttle response. While he was doing that, the engine caught fire and caused significant damage to the property he was renting and to his neighbor’s property.
Technically, under the UCMJ, he was in physical control of the vehicle. He made the conscious decision to turn the truck on. The engine was running. He was intoxicated under the law. That was an Article 113 situation that no one anticipated.
Most people think of drinking and driving as the only risk. As this case shows, the article reaches a wider set of scenarios.
The Practical Takeaway
If you are drinking, do not drive. If you are drinking, do not end the night asleep behind the wheel. And do not perform mechanical repairs after drinking.
If you are facing a charge under Article 113 or any other article of the UCMJ, call my office, Joseph L. Jordan, Attorney at Law, at (888) 643-6254, or use the online contact form. I am a former Army JAG prosecutor and I represent service members in all branches, worldwide.