Ithaca DWI Lawyer: How a DWI Judge Instructs the Jury on Operation Part II

"Another lesson about the justice system: the way the judge charges the jury inevitably pushes them one way or the other, limits their independent judgment.” 

― Howard Zinn, You Can't Be Neutral on a Moving Train: A Personal History of Our Times

Is he legally operating a car in New York?

Judges instruct the jury on how they will apply the facts to the law. These are called the jury instructions. In a New York DWI case as in any criminal case these instructions and how they are given can sway a case. It can as in the words of Howard Zinn, "push them one way or the other."

How do DWI judges instruct juries in New York about operation (driving)?

What is the importance of proper DWI jury instructions?

How can a DWI defense lawyer use jury instructions to their client's advantage?

There are Three Main Sets of New York DWI Jury Instructions 

1. The jury instruction about OPERATION (to lay people driving) in New York State;

2. The jury instruction about CHEMICAL TESTING (if any was done with this DWI case);

3. The jury instruction about what INTOXICATION means in New York State.

DWI Operation of a Car is Far More than Just Driving in New York State

In DWI cases where a person is charged with DWI in a non-moving car (parked) the word operate takes on a much higher level of importance. This can come into play with a car on or off, with the air conditioning running in the heat of summer or the heater running in the dead of winter.

This is more operation than the first picture because
Hand on the wheel, possibly foot on the break, and ready to go!

What does it mean to operate a car in New York legally?

Well the judge instructs the jury:

Remember: Operation always requires INTENT to drive.

"A person also OPERATES a motor vehicle when such person is sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion

and

when the motor vehicle is moving, OR even if it is NOT moving, the engine is running."

Is Sleeping DWI a Crime in New York State?

I guess it depends what they can prove or demonstrate. If the police come upon a parked car, is it running, is anything on in the car, like the radio, or a fan? So if we have someone sleeping in a car or relaxing in a car UNLESS they can be shown to have intent to operate then we are missing the crucial ELEMENT of OPERATION in New York.

Intent can be shown by a number of things: in the driver's seat, hands close to the wheel, hands close to the or on the gear box or transmission.

A Request of the Judge to Give a Written Copy of this Jury Instruction on Operation to the Jury

Making sure that the jury receives a written copy of this particular jury instruction so that they can READ it slowly and carefully may mean the difference between Legal Guilt and Legal Innocence for    a DWI charge. Judges usually READ to the jury the jury instructions this is not the best way for    most people to fully understand them.

In the next blog post I'll discuss the New York DWI jury instruction concerning the Chemical Test. 

Lawrence Newman is a partner in Newman and Cyr which focuses on DWI and criminal defense in the Fingerlakes region of New York State. contact larry@ithacacdwi.com