taking-car-keys-from-drunk-driverFriends don’t let friends drive drunk. If you’re old enough, you’ll remember that campaign from the Ad Council. The six-word phrase doesn’t leave room for interpretation. If you know someone is about to drive drunk, you are supposed to try and prevent it. So how far can someone go to prevent drunk driving? What are the lines not to cross? Can you forcibly take someone’s keys if they are about to drive under the influence?

Victor Fiorillo, writer for Philadelphia Magazine, did just that recently. In a December 15th opinion article, Victor told his story of taking a would-be drunk driver’s car keys. He writes in a story-like prose, and it reads as if you’re there seeing it. Had yours truly been there, Mr. Fiorillo would have been applauded. However, what he did (and what others may be tempted to do) is essentially illegal.

Let’s break down what Victor did, discuss the legality, and then touch upon some ways that you yourself can legally prevent the drunken driving of others, friends or not.

Victor Steals Keys

Upon leaving a bar in Delaware County, our friend Victor “noticed a man staring intently out the window.” Victor asked the man what he was staring at. Turns out he was watching to see if his drunken friend was about to drive. The friend was parked across the street. The staring man said to Victor, “He can’t even stand up straight.”

So Victor took matters into his own hands… literally. He crossed the street and found the staring man’s friend getting into the driver’s seat. “I said hello to him, he said hello back, and I put out my hand out as if to shake his,” writes Victor. “Instead I promptly snatched the keys from his hand.”

The would-be drunk driver began yelling at Victor, who was heading back to the bar to give the staring man the keys. “What am I supposed to do with these?” the man asked Victor, to whom he replied, “Just keep them away from him.” That night, the bartender drove the drunken man home.

Victor received a message from the bartender the next day that said, “You were right. He seemed fine until he got up to leave. I was trying to talk him out of driving, too. He’s home safe now. Thanks for the effort.”

Did Victor Commit a Crime?

Obviously our hearts go out to Victor, who prevented what could have been a disaster. Nobody was injured, because of his decision to take the man’s keys, and he did it in a nonviolent manner. However, in the eyes of the law, he essentially committed theft. We sat with an established vehicle and traffic lawyer to discuss the legality of Victor’s situation and possible similar instances. ‘KR’ wished to remain anonymous.

Us:      If someone were to take the car keys from another person who was drunk and about to drive, could there be legal ramifications that follow?

KR:     Wow, good question! I suppose there could be theft charges brought up, but no prosecutor would follow through. What you’re doing is for the benefit of society, even though you’re in essence committing a crime. So yes, there could be legal ramifications, but 9.9 times out of 10 there wouldn’t be, so long as no other crimes were committed in the process.

Us:      So in Victor Fiorillo’s case, if the person he took the keys from went to the police, nothing would happen?

KR:     Probably not. To be perfectly honest, the cop would probably be like, “Are you serious?” That’s if the person was honest in the first place… but they’d better be honest or else it’s filing a false claim! (KR says this half-jokingly).

Us:      Does this mean I can take anyone’s car keys if they’ve been drinking?

KR:     Ha, ha, hold up now. Let’s not get all willy-nilly with it. There’s a concept in law called necessity. It basically states that you can commit a crime in order to prevent a more egregious crime, within reason, and provided you didn’t create the situation yourself. I suppose taking a potential drunk driver’s keys could very well classify as a necessity by law. You would obviously have to give the keys back at some point, or to someone who claims responsibility for them after you take them. There also cannot be force used, and that could get tricky when actually taking some drunk person’s keys, eh?

Us:      I suppose! Could you elaborate on two things for me?

KR:     Sure. What’s that?

Us:      Could you talk more about what to do with the keys once you have them? Also, you said no force could be used. Does this include grabbing them out of a hand?

KR:     Oh my… you’re killing me here! Let’s first define what the law considers theft. [KR refers to a computer in the room for a small while.] Okay here we go. Model Penal Code, Section 223.2 states: “A person is guilty of theft if he/she unlawfully takes or exercises control over movable property of another with purpose to deprive him/her thereof.” See, it’s that ‘deprive him thereof’ part that matters.

Us:      What do you mean?

KR:     I mean that if you take or even steal someone’s car keys who is clearly too drunk to drive, fully intending to return them once that person is sober, and no harm was done in the process of acquiring the keys, no crime was committed and in fact a crime was prevented. A cop would probably high-five you for it.

Us:      Fantastic. Now can you elaborate on the issue of force please?

KR:     I would say that if anything more than minimal effort has to be made in order to acquire the keys, you should notify authorities instead. Also, just as a side-note, obviously exercise caution when attempting to take keys from a drunk person. I will say though, in Victor’s case, I would find him not-guilty of any and all charges that rose from that situation. Hell, I’d represent him. Let it be said, though, this does not mean people can just run around stealing car keys from people who may or may not be legally drunk. If you have to second-guess what you’re doing, you should probably stop doing it. However, if someone is able to without force obtain the car keys of someone who is clearly intoxicated, and intends on returning them, no legal ramifications would come about.

The Necessity Defense

What we learned from KR was eye-opening. Using his input as a guideline, we discovered five legal requirements for using the necessity defense. If you, dear reader, ever find yourself in a situation where you want to take the car keys of someone who is drunk, the following list will help you avoid breaking any laws and crossing any lines.

  1. Be sure a threat exists. The person you take keys from must be either about to drive or guaranteed to drive, and they also must actually be drunk. Don’t just take the keys out of your friend’s purse after she has one Corona Light at dinner. There must be a visibly drunk person who is beyond any doubt about to operate a motor vehicle.
  1. Cause less harm than good. According to the writ of the law (linked above), as long as “the threat he/she is trying to prevent is greater than the damage that will result from his/her actions,” then the act was performed out of necessity. Don’t attack, assault, or threaten anyone in attempting to get their keys.
  1. Threat must be imminent. If the person you’re taking the keys from doesn’t plan on driving for a long time, and is sober by the time he or she drives, you have no right to take their keys, and charges of theft may stick.
  1. Take them as a last resort. First, plead with the individual, if you feel comfortable enough to. If you don’t, have someone closer to the individual do so. The law says there must have been “no other, less harmful way to avoid the threatened danger.” Only take someone’s keys as the last viable option.
  1. Don’t have caused the original crime. Regarding our topic at hand, this means you cannot have facilitated someone’s getting drunk and then use that as the reason for stealing keys. The potential drunk driver must have gotten drunk on his or her own accord.

If you follow these rules, and see it necessary to take someone’s keys, do it.

Buckley v. City of Falls Church

Digging even deeper, we find a case from the Virginia Court of Appeals from 1988. In was during this case, Buckley v. City of Falls Church, which the idea of legal necessity came from. James Buckley was trespassing on the grounds of a woman’s health clinic, passing out anti-abortion literature. Buckley’s defense attorney tried to say that he was acting out of necessity, but in the end Buckley was found guilty. However, the case established the official guidelines for when a defense of necessity is applicable, as outlined in the requirements above.

Other Ways to Prevent Drunk Driving

Let’s be clear that stealing someone’s keys should be a last resort. Recognizing that many citizens may want to play their part in preventing drunk driving, the National Highway and Traffic Safety Administration (NHTSA) in 2009 issued some tips on how to do so. Summed up, here they are:

  • First and foremost, try public transportation. There are buses, subways, trains, driving services like Uber or Lyft, and there are taxicabs. As a matter of fact, you can call 1-800-TAXICAB to be hooked up with a nearby taxi service. Plus, many restaurants and bars participate in programs to get people home safely.
  • To prevent someone else from drunk driving, be calm first. “Suggest to them that they’ve had too much to drink and it would be better if someone else drove or if they took a cab,” says the NHTSA website, linked above. This works best if you have a relationship with the potential driver.
  • Try being funny about it. Joke around a little. Maybe say something like, “You couldn’t drive a golf ball right now!” This approach also works better with certain comfort levels.
  • If attempting to dissuade a stranger from driving drunk, speak to his or her friends. People, drunk or not, tend to listen more to those they know personally.
  • If you happen to have arrived with them, for example if it’s your significant other or a close friend, you can say you’re not going with them. Oftentimes people want to stay in their group, and threatening to break it up and leave them alone could persuade them to not drive.
  • Do not be confrontational.
  • If all else fails, call the police or notify an appropriate authority. “The police can be much more persuasive and they would rather prevent a drunk from getting behind the wheel than to respond to the scene of an alcohol related crash,” says the NHTSA.

The last tip offered by the administration brings us full circle. They recommend stealing the person’s keys. There you have it, folks. If the NHTSA is telling us to steal keys when applicable, then obviously there can be no legal ramification. Just remember to adhere to the five requirements for acting out of legal necessity. We will leave you with the wording from the NHTSA regarding stealing a would-be drunk driver’s keys:

“Locate their keys while they are preoccupied and take them away. Most likely, they will think they’ve lost them and will be forced to find another mode of transportation.”