Shortly after midnight, the City of Erie Police noticed a car parked in the parking lot of the Holiday Inn. The driver was asleep behind the wheel, with the key in the ignition and the parking lights on. An open bottle of beer was in his right hand and an empty beer bottle was behind the passenger seat. The police also observed a marijuana pipe on the front seat armrest. After the motorist was awakened and determined to be under the influence of alcohol or other controlled substance, he submitted to a blood test, which revealed a BAC of 0.14 %. No one witnessed the motorist drive or otherwise move the vehicle while under the influence of alcohol.

The motorist waived his preliminary hearing on the advice of another lawyer in return for the drug charge being withdrawn. After his formal arraignment, the motorist hired Erie DUI lawyer Tim George and, rather than enter a plea of guilty to DUI, proceeded to trial. After jury selection, the defense presented a trial memorandum and a motion for judgment of acquittal on the basis that the evidence expected at trial would fail to establish that the motorist was "driving, operating or in actual physical control of the moving vehicle" while under the influence of alcohol. Further, the defense argued that the motorist created no danger to public and merely "sleeping it off" in the parking lot was consistent with what the public policy encouraged responsible people to do. The charges were then dismissed.

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