The Commonwealth could well have charged Joshua Hall with public intoxication, or with disorderly conduct; however, there was no probable cause to arrest Joshua Hall for DUI. The issue of operation has been addressed by our Courts. The Kentucky Court of Appeals has adopted the in 709 Wells v. Commonwealth, following criteria defining “operation” S.W.2d 847, 849 (Ky. App. 1986): 1. Whether the person in the vehicle was asleep or awake; 2. Whether or not the motor was running; 3. The location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and, 4. The intent of the person behind the wheel. The facts in the case at bar are very nearly indistinguishable from those in the case. Wells However, in the case, the defendant had additionally moved the gear shift to the neutral Wells position, whereas there is no evidence that Joshua Hall operated the gear shift in his vehicle at all. By virtue of having shifted his vehicle into neutral, Mr. Wells was a step closer to operating his vehicle than Joshua Hall was, yet the court found that Mr. Wells was not in violation of the statute. Applying these criteria to the case at bar, the first item weighs in favor of Joshua Hall. He was so soundly asleep that the police were unable to awaken him to the extent EMS was called to the scene. The second item weighs against Joshua Hall, except that the event occurred late at night in January when it is quite reasonable to believe that Joshua Hall had the engine running in order to run the air conditioner in his car. The third item weighs in favor of Joshua Hall. There is no suggestion that the vehicle was driven to its location by Joshua Hall while he was intoxicated. As to the fourth criteria, there were no indicators in or in the case at bar to Wells
The Commonwealth could well have charged Joshua Hall with public intoxication, or with disorderly conduct; however, there was no probable cause to arrest Joshua Hall for DUI. The issue of operation has been addressed by our Courts. The Kentucky Court of Appeals has adopted the following criteria defining “operation” in Wells v. Commonwealth, 709 S.W.2d 847, 849 (Ky. App. 1986): 1. Whether the person in the vehicle was asleep or awake; 2. Whether or not the motor was running; 3. The location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and, 4. The intent of the person behind the wheel. The facts in the case at bar are very nearly indistinguishable from those in the Wells case. However, in the Wells case, the defendant had additionally moved the gear shift to the neutral position, whereas there is no evidence that Joshua Hall operated the gear shift in his vehicle at all. By virtue of having shifted his vehicle into neutral, Mr. Wells was a step closer to operating his vehicle than Joshua Hall was, yet the court found that Mr. Wells was not in violation of the statute. Applying these criteria to the case at bar, the first item weighs in favor of Joshua Hall. He was so soundly asleep that the police were unable to awaken him to the extent EMS was called to the scene. The second item weighs against Joshua Hall, except that the event occurred late at night in January when it is quite reasonable to believe that Joshua Hall had the engine running in order to run the air conditioner in his car. The third item weighs in favor of Joshua Hall. There is no suggestion that the vehicle was driven to its location by Joshua Hall while he was intoxicated. As to the fourth criteria, there were no indicators in Wells or in the case at bar to
supplemental%20motion%20to%20suppress%20-%20DUI%20Stop.docx