Sunday, January 19, 2014

Ithaca Cortland Lawyer DWI Proving Driving or Legal Operation

Now how cute is this Driving
my only question, would a cat be cuter? nah
from cutest

New York DWI (driving while intoxicated) charges require there to be driving or more broadly speaking legally, OPERATION of a motor vehicle. Sometimes the police do not have actual proof of the driving, they did not witness it, nor did anyone else.

So in these types of cases how do they prove the operation of the car?

Looking at the NYS Office of Court Administration Criminal Jury Instructions gives us direction here:

1.  sitting behind the wheel for the purpose of operation (driving) AND vehicle moving OR if not moving with the engine running;

2.  proof beyond a reasonable doubt that the car was recently driven (engine hot) OR seated behind wheel, engine running, and the present intention of driving.

Dangers and issues in this area arise when the facts are unclear. Passengers have been held guilty of DWI when they grabbed the steering wheel and "drove" the car. People asleep at roadside have been held guilty of DWI even though it was unclear "when" they drove or even if they drove after becoming intoxicated.

Drunk and asleep at the wheel, well maybe just asleep in this case

DWI has NOT been found in the following situations:

  • Person behind the wheel and starting car for owner with NO intention of driving merely starting the car.
  • Person behind the wheel, motor running to keep warm with NO intention of driving.
Reviews of Larry Newman:

Further suggested reading on New York DWI defense here:

The 9 Most FAQ About NY DWI, here:

The New York Up State DWI Survival Guide, here:

Winning The NYS DWI Refusal Case, here:

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 440 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.