Can You Get a DUI While Parked in New York?
New York is beginning the gradual reopening process after our weeks of social distancing. We’re not all going out at once yet or anything, but sooner or later it’s conceivable that some people will be back in bars.
So it’s a good time to talk about a portion of New York DUI/DWI laws that you may not know about. Such as the one that yes, you can be charged with a DWI even if you’re sitting in a parked car.
It can happen if you’re behind the wheel when you’re over the legal blood alcohol limit. There have even been instances when police have arrested people for starting to get behind the wheel of the car if they appear to be drunk while doing so. The idea is that you intend to drive while drunk.
Believe it or not, this has held up in court. The driver had a key, sat in the driver’s seat, and was intoxicated? Then it was kosher to arrest them and the charge sticks. This has even happened in keyless entry cars. The presumption is that heading to the driver’s seat means you intend to drive while drunk.
What if you’re not in the driver’s seat but the car is running? Say, because you wanted to put the AC on while you took a rest? Unfortunately that won’t save you either, unless, perhaps, the car is sitting right outside the bar. Why? Because clearly you drove the car from somewhere to wherever the police found you taking your rest.
In addition, you’re “operating” the motor vehicle, and New York law says that you are barred from “operating” a motor vehicle while intoxicated or under the influence. Operating isn’t the same as driving, even if driving is the behavior it’s mostly meant to stop.
It’s the same provision that allows police to write you a ticket for distracted driving due to cell phone use, even if you were sitting in a parked car that’s running. You’re operating the vehicle, even if it isn’t moving.
One way to defend these cases is to show there’s no intent to move the car, as long as it’s still at the bar where you were getting drunk. For example, in the 2012 case People v. Ramsey, the People were unable to secure a conviction because the car ignition was off even though the key was in and the driver was in the driver’s seat. The key was operating the CD player and the court found that the People could only prove the driver intended to sit there and listen to music. There was no evidence the car had moved and no evidence of intent to move.
The devil is in the details in a DWI case, and you have to have an attorney who will double down on those details if you want to avoid a DWI charge. While it’s always best to get an Uber, Lyft, or cab rather than going anywhere near your car, Scott Russell Law is here to help if you’ve made an innocent mistake.