Convicted ‘Slumper’ Shows How to Get a DWI Without Driving in Minnesota

On a summer night in 2007, Minnesota man Daryl Fleck slipped into a drunken slumber in his own car. Had he been driving the vehicle, his choice would clearly have been a problem. Driving while intoxicated is against the law, and Minnesota statutes carry stiff penalties for the violation. But Fleck was not driving. The car was not on. In fact, police later found that the car would not even start. But Fleck was charged and later convicted of driving while intoxicated, showing that there are indeed ways to get a DWI without driving in Minnesota.

Fleck’s car was parked in the assigned space of his Crookston apartment complex, according to the Minneapolis Star Tribune. But the driver’s door was open and someone called the police. When police arrived, they found that the engine was cold but the keys were in the vehicle’s console. It wasn’t clear whether Fleck drove the car to its parked location while he was in a drunken state. But he was inebriated while he was in his car. Under Minnesota law, that’s enough to be in “physical control” of the vehicle.

Fleck’s drunkenness was not in dispute. His blood alcohol level was found to be .18 and he admitted to police that he had consumed about a dozen beers that evening, according to He also had multiple drunken driving convictions on his record, which made it easy for prosecutors to convince a jury to convict him, The said. But the vehicle was not operable. When the police later tried to start the impounded car using the keys found in the vehicle, the engine would not start.

Despite the failure of Fleck’s car to start, the Minnesota Supreme Court unanimously agreed with lower court decisions finding that Fleck met the state’s standard for physical control. In his 2010 order, then Justice Alan Page explained that a drunken person’s presence in a vehicle is not enough to show physical control. That determination is made by considering other factors, such as proximity to the car, the location of the keys, the ownership of the car, whether the person was a passenger, and whether the vehicle was operable. Fleck may have hurt his own case. Despite the fact that the car would not start, the court relied on his claims that the car was operable, The said. Page concluded that Fleck’s presence in his own vehicle while drunk with the keys in the console was sufficient to meet the physical control standard.

The drunken driving conviction was Fleck’s fourth, which elevated his sentence to a felony. At trial, he was sentenced to four years in prison. G. Tony Atwal, the public defender who took Fleck’s case, told the Star Tribune that the court’s interpretation of the law broadened the circumstances under which someone could be charged with drunken driving. “Presumably, if you’re in or about your car, the county attorney could now charge you with a physical control DWI,” he said.

Fleck’s case sounds unusual but it’s more common than people might think. Usually, these drivers are found passed out at a stoplight or parked by the side of the road, University of Minnesota law professor Steve Simon told that Star Tribune. These arrests are so common that police call these suspects “slumpers.” Minnesota has a broad definition of physical control because the state does not want anyone getting into a car if they’ve been drinking, Simon said. He noted that in one instance, a man was charged with drunken driving while behind the wheel of a car that was being towed.

It’s easy to assume that the Minnesota drunken driving laws apply only to moving vehicles. But Daryl Fleck’s case shows that the courts are willing to take a broader interpretation of the law. If you have questions about how Minnesota DWI statutes apply to your situation, contact us.