August 20, 2018
That’s an easy one…absolutely!
I get calls all the time from people who just don’t understand how they could be charged with DWI if the car wasn’t moving, for instance, if they were just sleeping it off in a parking lot or on the street outside a friend’s house or bar.
I can understand the frustration, but the law is pretty clear in New York: to “operate” a car means to drive it. But a person also “operates” a car when they sit behind the wheel for the purpose of placing it in operation, and when the car is moving; or if the car is not moving but the engine is running.
Proof of operation is established by showing that the driver had recently driven the vehicle or by proof that he was seated at the wheel with the motor running and with the intention of placing the car in operation (see the definition of “operation” above).
So if you’re in the McDonald’s parking lot sleeping it off and a cop knocks on your window, you’re probably going to find yourself in trouble with the law. Yes, you did a commendable thing by realizing that you shouldn’t be driving so you pulled off somewhere safe to sober up. Thank you for doing that before you hurt yourself or someone else. Seriously. But the problem there is you were “operating” the car when you came to that conclusion.
Some people think they’ll get a pass if they admit to the cop that they did the right thing by parking the car after coming to the realization that they were intoxicated. But in reality all you’ve really done unfortunately is make two admissions that will absolutely be used against you during the prosecution of your case: 1) you admitted to being intoxicated, and 2) you admitted to driving to that parking lot. That’s a tough one to beat (but not necessarily impossible!).
Even in cases where no admissions are made, it is still likely that a DWI arrest will result just by the nature of the circumstances: sitting in a parking lot (especially if it’s nowhere near a bar), visibly intoxicated, evidence of operation (i.e., warm car, engine running, keys in ignition, witnesses to operation, etc.), no alcohol in the car (so you drank somewhere else and had to get to where you are now somehow); add to that a high BAC and your fate is sealed (you’re not getting to a .18, for example, from just sitting in your car).
Granted, some issues can certainly be raised by the defense in cases where the car was not observed in operation by the police/witness, or it’s unknown or disputed how much time passed while the person sat in that lot or on the side of the road, or whether that person consumed alcohol during that time, and even the actual intent of the person in the driver’s seat to actually drive the car at all (at least in instances where the car was not actually driven anywhere but may just be outside a home with the engine running for heat).
But you can rest assured that you if you are found intoxicated in a parked vehicle with the engine running, the cop will more than likely charge you with DWI and let you sort it out in the courts. (Sure, they’d rather be safe than sorry, but it’s also pretty good for their numbers to make those type of arrests.)
Obviously the smartest option is always to not even get into a car after drinking to the point of impairment or intoxication. But if you found yourself in that situation where you just had to turn the car on, or you realized you had to get off the road, I’m here to help.
If you have been arrested and charged with DWI or any other alcohol or drug-related driving offense, call Carpenter Law PLLC at (845) 493-1002 today for a free consultation.