Driving While Intoxicated (DWI) When You’re Not Actually Driving???

April 2, 2009

drunk-sleeping-behind-wheelIn New York, pursuant to NY VTL § 1192, one may be convicted of the serious criminal offence of Driving While Intoxicated (“DWI”) if he “operate[s] a motor vehicle” while legally intoxicated. The question is: What does it mean to “operate a motor vehicle”? Is it enough to turn on the engine to violate the statute? Can you be arrested for walking toward your car? What if you sit in the car with the keys in your pocket?

In a case in Connecticut, People v. Cyr, officially released just two days ago, Michael Cyr was intoxicated, he started his car using a remote starter, and then sat down in his car, with the keys in his pocket, to go to sleep. The Connecticut court upheld Cyr’s conviction because, it explained, the law in that state is that “[t]he act of inserting the key into the ignition and the act of turning the key within the ignition are preliminary to starting the vehicle’s motor. Each act, in sequence with other steps, will set in motion the motive power of the vehicle… Each act therefore constitutes operation of the vehicle…”

How does this rule compare to the rule in New York?

In New York, if one is drunk while sitting in his car, and it is reasonable to infer that he (or she) had just driven, or was probably about to drive, he can be convicted of a DWI. In People v. Membrino, 181 Misc.2d. 796, 799 (NYC Crim. Ct. 1999), citing People v. O’Connor, the court stated the following rule for NY DWI convictions: Operating a motor vehicle “includes the act of ‘[using] the mechanism of the automobile for the purpose of putting the automobile in motion even though [the vehicle does not move]’.” (emphasis added)

The court in Membrino further cited the Court of Appeals that “An established line of authority in New York and elsewhere holds that … operation of the vehicle is established on proof that the defendant was merely behind the wheel with the engine running without need for proof that defendant was observed driving the car, i.e., operating it so as to put it in motion.” (emphasis added)

As stated above, even if police make a reasonable inference that one is aboutto drive intoxicated, he may be convicted of a DWI. In the case of People v. Marriott, 37 A.D.2d 868, the defendant was observed twice by police in his car; the first time with the engine off and the second time with the engine on. The court there held that since it was reasonable to infer that Marriott was about to dive, the act of sitting in the car with the engine on constituted “operating a motor vehicle” while intoxicated.

In Connecticut, the mere act of sitting in a car while drunk is enough to violate the statue, but New York is slightly more lenient. The Court in O’Connor at least stated that “[w]here there exists a logical, credible explanation such an inference can be defeated [because  t]he definition of operation cannot so alter its ordinary meaning as to create a new crime not intended by the legislature.” 

The defendent has the burden of rebutting the presumption that he was about to drive his car, so specific facts must be garnered showing a reasonable explanation why the defendant was in his car.

As Gideon, at the Public Defender blog points out, a person may just be sitting in his car with the engine on so that he has a warm place in the winter to sleep off whatever he drank. In New York though, the defendant must provide facts which indicate a reasonable, alternative explanation for the client’s presence in the car in order to avoid a DWI conviction.

As always, if you or someone you know has been arrested for a DWI, give us a call.

Picture courtesy of jalopnik.

Advertisements

2 Responses to “Driving While Intoxicated (DWI) When You’re Not Actually Driving???”


  1. […] we go again. As we explained back in April of last year, it’s quite possible to get a DWI just for being in or near your car, even if you’re […]


  2. […] we go again. As we explained back in April of last year, it’s quite possible to get a DWI just for being in or near your car, even if you’re […]


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: