NO DWI With a Keyless Remote

Key Fobs and New York DWI Don't Mix

Things are most definitely changing. Is New York DWI law keeping up? It's 2018 and most cars are no longer analog they are digital. What this means is that there are more computers and electronics in them than ever before. So many new cars no longer even use a key. Keyless entry, operation, and function are now more the norm. I even have car with a permanent key (can't be removed) but you still need a key in your pocket to operate it.



Does having more bells and whistles change the nature of the crime of DWI?

Does having keyless entry change DWI while in a parked car?

New York DWI Requires Operation Not Driving

Operation is a term much broader than driving in New York and a recent case raised the issue of keyless entry.

The term “operation” has a very specific meaning under the Vehicle and Traffic Law. It is undisputed that the definition of the term “operate” as defined in DWI statutes is broader than that of driving and that “[a] person operates a motor vehicle within the meaning of the [statute] when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle.” People v. Alamo, 34 NY2d 453, 459 (1974) quoting Matter of Prudhomme v. Hults, 27 AD2d 234, 237 (3d Dept. 1967).

On all of the police forms it states key in the ignition as a step in the direction intent to operate. But what if there was NO key in the ignition? I think the police need to update their forms.

Keyless Entry Means NO Key in the Ignition 

Lekram was on DWI felony probation and he had a revoked license. So Lekram had to have an IID (ignition interlock device) on any car he owned or operated. He was minding his own business, and just sitting in a car without an IID. You can get a DWI in parked car but you still have to prove OPERATION.

He gets out of the car, and the police arrest him for DWI. The police concluded that since he admitted to drinking, failed their sobriety tests, and was in the car drunk then he must be DRIVING while intoxicated.

The case went to a DWI hearing.

The judge asked was the car turned on? NO
The judge asked where was the car key? In Lekram's pocket, keyless entry and operation.
The judge stated just because you are sitting in a car, even drunk, with the key fob in your pocket doesn't rise up to DWI operation.

The DWI charge against Lekram was tossed out. Because the police failed to state or show that Lekram performed a physical act with the intent of setting the car in motion.

New York is one of few states where you can indeed prove operation by circumstantial evidence but this case was a stretch.