Last Updated: 05.06.2020

Picture yourself at a party getting ready to leave. You want to drive home. It’s late. You had a few drinks, and are pretty tired.

When you got behind the wheel, you thought you were OK to make it a few miles home. 

While you’re driving, you realize you probably shouldn’t be driving for fear of getting a Maryland DUI but don’t want to stop and sleep it off for fear of being spotted sleeping in your car by police. You keep driving, but the red and blue lights in your rear-view mirror pull you to a dead stop.  What you didn’t know but should have, is that in Maryland, the courts and the law actually encourage you to pull over and “sleep-it-off” based on several cases, most importantly, one called Atkinson.


This would violate the Atkinson Diet (and a Maryland DUI law if the driver were drunk)

An example of a car that is NOT legally parked

In order to be convicted of a violation of any Maryland DUI laws, you obviously need to drive a vehicle. An important part of driving is the legal definition of drive (which in short is):

  • driving;
  • attempting to drive; or
  • being in actual physical control of your motor vehicle

Cases throughout the last thirty years have hashed out the “legal” definitions of drive and attempting to drive.  See e.g. here and here.

Atkinson v. State

Atkinson, importantly, has set out a number of factors for a court to consider when figuring out if a driver is in actual physical control of a vehicle or not (and thus not guilty of a Maryland DUI).  This is also sometimes referred to the “shelter doctrine”.

So when determining if you were “driving” your vehicle, any judge or jury will examine the below factors along with all the other circumstances of your case – hence why it is important to have the advice of a good Maryland Attorney, who will know your prior history, be familiar with the court setting, and the State’s Attorney.

 The Atkinson Diet (as we like to call it):

  1. whether or not the vehicle’s engine is running, or the ignition on;
  2. where and in what position the person is found in the vehicle;
  3. whether the person is awake or asleep;
  4. where the vehicle’s ignition key is located;
  5. whether the vehicle’s headlights are on;
  6. whether the vehicle is located in the roadway or is legally parked.

Atkinson v. State, 627 A. 2d 1019 – Md: Court of Appeals 1993.


So, what do you do if you find yourself in the scenario described at the top of the post?  Park your car, legally.  Pull the keys from the ignition and throw them on the passenger floorboard.  Turn off your lights.  Climb in the back seat.  Take a nap and sleep it off!

Remember, police make arrests, judges decide the law.  So don’t be surprised if your explanation of the “Atkinson Diet” doesn’t work to the cop… so please be polite to the officer, invoke your right to remain silent, and call your Maryland DUI Lawyer (program our number in your cell phone just in case)!