ET wrote:

Lynn Melrose wrote in
:

ET wrote:


Drunk and in possession of car keys is not an offense.... driving
drunk in a private parking lot is not either for that matter... You
start prosecuting for alleged "intention" alone and you now live in a
totalitarian state....

Don't be so sure. New Hampshire is one of the states farthest from
totalitarianism, but its Supreme Court just ruled that a person asleep
in a car parked (transmission in PARK) in a private parking lot with
the engine running to stay warm was operating while intoxicated.

Summary: http://www.lexisone.com/news/ap/ap111403d.html
Case Decision:
http://www.courts.state.nh.us/suprem...000/glagay.htm

As an aside, the message that this case appears to send to drunk
drivers is that you're no better off if you pull over and stop, so you
might as well keep going.



Absolutely ridiculous......

Although after reading to opinion in the link of your post, there was a
witness the the person actually driving within a reasonable time of being
observed by the officer in his car etc... so it's not "quite" as ridiculous
as it first seems.....

My mistake, I posted the wrong opinion link! The not quite as ridiculous
decision was actually the wrong case. You can view the opinion to the case
above at:

http://www.courts.state.nh.us/suprem...3/winst154.htm

"The record supports the following facts. The charge arose out of an incident
on April 6, 2002, when, at approximately 3:13 a.m., Officer Shawn L. Hallock of
the Claremont Police Department discovered the defendant in a car in the
Wal-Mart parking lot. The defendant was sleeping upright in the driver’s seat,
with the car engine running. At trial, the defendant testified that he decided
to sleep in his car because he was "not . . . capable to drive anywhere," and
that the car was running so he could stay warm. The defendant further testified
that while he had no intention of driving the car, he did unlock the door, sit
in the driver’s seat, push the clutch in, move the gear selector to neutral,
start the engine and turn on the heater."
....
"Here, the defendant was also found asleep in the driver’s seat of a car in a
parking lot with the engine running. Moreover, the defendant testified at trial
that he unlocked the door, sat in the driver’s seat, pushed the clutch in,
moved the gear selector to neutral, started the engine and turned on the
heater. Given these facts and the reasonable inferences therefrom, a rational
trier of fact could find beyond a reasonable doubt that the defendant was in
actual physical control of the car before he fell asleep. See Willard, 139 N.H.
at 571."
_______
The breathalyzer test is notoriously inaccurate; the blood test is very
accurate. (Gargling mouthwash and spitting it out may be enough to fail a
breathalyzer test, even though you are not intoxicated. Conversely, it can
underestimate the actual alcohol in the blood.) Somehow I doubt the police
officer would have requested the blood test if the breathalyzer had recorded
0.08. BAC. In many states you have the right however to request a blood test,
but unfortunately the breathalyzer has been accepted by the courts. .