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What Is the Shelter Rule Defense?

Interviewer: Could you tell us about Shelter Rule defense?

Brian: The Shelter Rule defense came about basically as a societal interest.  As a society, if someone is driving drunk, we want to encourage them to pull over to the side of the road or pull over into a parking lot and sleep off being drunk or find other options.

The Shelter Rule Encourages Drivers to Pull off the Road When They Are Impaired and Wait until Alcohol Is Being Eliminated from Their System before Resuming Driving

The alternative to that being if someone is too drunk to drive and they realize that they are too drunk to drive, as a society we do not want to encourage people to drive home faster just so that they have a lesser chance of finding or running into a police officer.

The Shelter Rule was supposed to be a nice medium where if someone is too drunk to drive, we should give them the ability to pull over to the side of the road, try and sleep it off. They can do this without being arrested and without having to stand trial for a DUI because they’ve kind of become a sitting target.  The longer that they’re out in the open, the more chances they are to encounter police officers and get arrested, but we want to encourage people to pull over.

Some Arizona Prosecutors Disregard the Shelter Rule

The court system has developed something called a Shelter Rule and it really should mean that someone is not arrested and does not have to go through the system if they are using their vehicle as a shelter.  Unfortunately, a lot of prosecutions are focusing on people who have done the right thing, who have pulled over to the side of the road or have pulled into a parking lot and attempted to sleep off being drunk.

Then it becomes both a legal issue for the court to decide whether legally the person was using the vehicle as a shelter or it becomes an issue for the jury to decide whether the person was using the vehicle as a shelter. They decide if the individual had relinquished control of their vehicle or whether they were truly still within actual physical control.

What Factors Are Juries Instructed to Consider When Weighing the Shelter Rule?

There is a leading case out of Arizona from the Arizona Supreme Court that is a jury instruction for factors that the jury should consider in determining whether someone was using a vehicle as a shelter or whether they were in actual physical control of that vehicle.

Factors to be considered include whether the vehicle was running and whether the ignition was in the on position.  Where the ignition key was located?  Where and in what condition the driver was found in the vehicle?  Was the person was awake or asleep?  Was the vehicle’s headlights on?  Where was the vehicle stopped?  Did the driver voluntarily pull off the road, and the time of day and weather conditions.  Was the heat or air conditioner on?  Where the windows were up or down and any other explanation of the circumstance as shown by the evidence?

The problem with being here in Arizona, we tend to have both extreme heat and extreme cold during the wintertime.  It isn’t simply a matter where you’re sitting in the driver seat and the engine is on.  In Arizona, if someone were to be driving drunk and if they were to do the right thing and pull over to the side of the road, if it’s in the middle of summer, we have 100 degree midnights out here.

You need air conditioning.  It is not unheard of and it is not unfathomable that someone would park their car, do what they were supposed to do, but leave the engine running in order to run the air conditioning.

Many Drivers Still Have to Retain an Attorney to Argue the Merits of the Shelter Rule Defense

The Shelter Rule was meant to be a defense and it was actually intended to not punish people for doing the right thing.  At this point, it does seem to be more of a defense and I have been able to get many cases dismissed because of the Shelter Rules of defense. It is unfortunate that a person even had to go as far as to pay money for a private attorney to argue this when the idea of the Shelter Rule was not to charge people in the first place.

Interviewer: Do many people in Arizona know about the Shelter Rule?

Brian: I don’t know if it’s commonly known.  It is case law-based.  There is no actual law or statute concerning the Shelter Rule other than acknowledging the flip side of being in actual physical control of the vehicle.  Case law has indicated that you are not in actual physical control of the vehicle if you have relinquished control.  If you pulled over to the side of the road, if you’re sleeping it off, if someone has been knocked out or knocked unconscious, these are people that no longer have control over a vehicle.

By Brian Douglas Sloan

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AZ DUI Defense Lawyer Brian Douglas Sloan
  • 13+ Years SOLELY Focused on DUI Defense
  • Represented 2,600+ DUI Clients
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