Police officer Christine L. Miller was off duty. She drove some friends to O’Leary’s Bar and Restaurant. Christine was an officer in the Sunset Hills Police Department.

Christine was served numerous drinks at O’Leary’s Bar. After consuming “a high quantity” of alcohol Christine got in her car to drive home. Christine drove her Mitsubishi east in the west bound lane of Darity Ferry Road which caused an accident with another vehicle. Four young people were killed and one was injured in the traffic accident. Christine has been charged with four counts of first degree involuntary manslaughter plus one count of second degree assault. She is currently on an unpaid suspension from the Sunset Hills Police Department.

The civil lawsuit which was filed shortly after the criminal charges were brought against Christine was settled for $2.25 million. At the time of the crash Christine’s blood alcohol level was 0.169. The threshold for driving while intoxicated was .08%.

The parents of the victims sued both Christine and O’Leary’s Bar and Restaurant.

They claimed that the employees of the restaurant knew that Christine was intoxicated and did not prevent her from driving home or assist her in calling a taxi cab. The civil lawsuit also claimed the bar workers served Miller alcoholic beverages even though her speech was slurred and her gaze was unsteady.

Wrongful death lawsuits often result in large settlement or awards from juries. Should either you, a friend, or a loved one have the misfortune of being involved in a tragic accident call the law office of Elliot S. Schlissel at 1-800-344-6431 or email us.

Picture of Ms’ Miller’s car after the accident courtesy of pulledover.

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Here 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 not driving.

One evening in Minnesota, Daryl Fleck, had about a dozen beers. He felt intoxicated and he decided to sleep it off in his car which was parked outside of his house. When the police arrived, he was sleeping in his car with the driver’s side door in an open position.

Daryl had left his keys in the center console of his car. The car keys were nowhere near the ignition. At the time the police arrived the engine was cold and there was no indication the car had been started. The police officers determined that Mr. Fleck was intoxicated. His explanation as to why he was sleeping in the car made no sense to the police.

Minnesota has a legal blood alcohol limit of .08. At the time of his arrest, Mr. Fleck’s blood alcohol level was .18. 

Mr. Fleck was convicted of driving while intoxicated in Minnesota because he had access to the vehicle while intoxicated. He received 48 months in jail plus 5 years probation. He appealed his case all the way up to the Minnesota Supreme Court which affirmed his conviction.

His attorneys were able to show the court that even if Mr. Fleck had put his keys into the ignition and tried to start the car it would not have started. This is because the car was not in running condition.

There have been case in New York that our office has been involved with involving individuals charged with driving while intoxicated who had never started their car. I have repeatedly told clients that in the event they are intoxicated, do not go near your car. The courts have given very liberal interpretations in the State of New York as well as in the State of Minnesota as to when the crime of driving while intoxicated occurs. In New York you simply need to be in your car in the driver’s seat in an intoxicated state with access to the ignition key.

Should you be charged with driving while intoxicated or driving under the influence of alcohol, it is important that you consult a law firm experienced in handling these matters. For more than 30 years, the Law Offices of Elliot S. Schlissel have represented individuals on DWI and DUI matters. We have provided excellent representation to hundreds of individuals who have been charged with drinking while driving offenses. Should you or a loved one be faced with a criminal charge of driving while intoxicated, e-mail or call us at 800-344-6431. We can help you.

Picture courtesy of wcco.com.

spotlightTwo articles that originally appeared on this blog were recently featured at GetLegal.com.

One article which originally appeared here was published at GetLegal at the very end of last month: COMMENTARY:  Fetal Homicide Laws & Legal Abortion – The Common Denominator

The other article which originally appeared here was published this past Monday: Driving While Intoxicated (DWI) Without Actually Driving

Picture courtesy of Daron Sutton.

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.