A recent Missouri Appellate decision out of the Southern District of Missouri has clarified what it means to be operating a motor vehicle while intoxicated. It affirmed that you can be “operating” a vehicle even if you are asleep or unconscious.

Defendant was found guilty of Felony DWI and received a four-year suspended sentence. He appealed his conviction asserting that there was not enough evidence to show that he was under the influence of alcohol at the time he was operating the motor vehicle.

The facts of the case as presented to the court are that the officer responded to an early morning report that there was a driver asleep behind the wheel at an intersection. When the officer arrived the engine was still running and the car was in drive. The officer observed defendant as follows; “eyes were closed, his head was resting on his chest, and he was drooling.” The defendant had his foot on the brake.

The Officer upon contact with the Defendant believed him to be intoxicated due to the strong odor of alcohol on his breath and the admission that he had been drinking at a friend’s house earlier.

Defendant argued that because there was no evidence to indicate how long the truck had been idling for, there was no evidence that Defendant was intoxicated at the time he fell asleep at the light.

Missouri statute 577.010.1 provides that “a person commits the crime of [DWI] if he operates a motor vehicle while in an intoxicated or drugged condition.” As the statute does not define the term operating, the court looked to the dictionary which defines it as “to cause to function usually by direct personal effort: work.”

The State argued that a vehicle can be “operated” even if the person is asleep or unconscious and the Court agreed. The State and the Court looked at precedents where previous drivers were found to be in operation of the vehicle even while unconscious because they were engaging the machinery of the vehicle (eg. foot on the brake pedal).