Not every Derry resident who is arrested for driving under the influence was driving at the time. Here in New Hampshire, it is often enough to be in actual physical control of the vehicle — which generally means being behind the wheel with the keys in the ignition — to be arrested for DUI. The question of whether a driver was in actual physical control of the vehicle could be part of his or her criminal defense.
This will most likely be an issue in the case of a New Hampshire man who was recently arrested on suspicion of aggravated DWI. A police officer came across a vehicle parked near a gas pump at approximately 2:15 a.m. Upon approaching the vehicle, the officer discovered a man sleeping in the driver’s seat. Allegedly, the engine was on and the car was in drive. The driver was supposedly able to keep the vehicle from moving by keeping his foot on the brake even though he was asleep.
It took several minutes for the officer to wake the man. Once awake, the driver started acting as though he was driving away from the scene, according to the officer. It is further claimed that the man exhibited signs of intoxication and failed a field sobriety test. Upon his arrest and transport to the headquarters of the Hooksett Police Department, he was given a breath test that indicated that his blood alcohol content was allegedly .22.
Since the vehicle was not moving at the time the officer found it and the man, his criminal defense counsel might review the officer’s statement, along with the circumstances under which the man came to be at the gas station. It will also be necessary to review any other evidence prosecutors intend to present to the court such as the breath test results. This case illustrates to Derry residents that the vehicle does not have to be moving for them to be arrested for DUI or DWI.
Source: Concord, NH Patch, “Concord Man Arrested for Aggravated DWI“, Tony Schinella, Sept. 4, 2016