Sunday, August 26, 2012

Ithaca Cortland DWI Lawyer Can You Be Charged with a DWI While Sitting in a Parked Car?

New York State law is not always simple or clean. It can be complicated only because we tend to "mince" words. This is especially true within the area of DWI law. Clearly we must have an agreement for what every word or term means if we are going to charge OR defend criminal charges.

NYS DWI is a criminal (misdemeanor) level offense as opposed to New Jersey where you get a civil traffic infraction. A mile over a bridge and the nature of an offense becomes crime. Life is truly unfair but those are the rules.

The BIG D in DWI 

Hint: Driving = Operation

Can the government (the DA, the prosecutor) prove the "D" in New York DWI when a car is in fact parked. Not just prove it but prove it beyond a reasonable doubt?

A critical element with any NYS DWI case is whether there was in fact the "D" as in Driving. Under NYS DWI law Driving really means "operating" and the difference between the two words (terms of art) is crucial.

For direction on this question we look to what a NYS judge will give to a jury for guidance on this issue. BTW Operate is a much broader term than drive under New York law.

The DWI NYS Jury Instruction for operation

 " A person operates a motor vehicle when that person is (found) sitting behind the wheel of that motor vehicle for the purpose of placing it in motion, AND when the motor is running, OR even if it is NOT moving when the engine (motor) is running."

Your intent (purpose) of being in the car is very important to the question of whether you are in fact operating the car (or plan to). The prosecutor must prove this INTENT beyond a reasonable doubt by the facts present.

A recent NY DWI case with a parked car, People v. Ramsey 2012 NY Slip Op 50672 decided on April 16, 2012 Supreme Court, Bronx County, the Court decided that operation (driving) was not found (no intent) based upon:

1. car parked legally,
2. car was off (ignition turned off)
3. Key in only for purposes of playing CDs (music)
4. police testimony failed to show ignition was engaged, assumed it was for music to play
5. car was never moved

The Supreme Court concluded that there was in fact no evidence of car movement or intent to move the car from the location it was parked. Defendant's right to privacy (4th amendment) was violated. Court determined that the police lacked Probable Cause, thus the Suppression of evidence of breath test and DWI case is mute.

Regarding operation of a car, See case of People v. Dalton, 176 Misc 2d 211 (2nd Dept., App Ter,. 1998). If DWI case, parked car, and ignition is NOT engaged see People v. Haddock, 2001 NY Slip Op 40138U (Nassau County).

         Lawrence (Larry) Newman, D.C., J.D.
Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850