Proving the "D" in DWI



By Ramy Louis, Esq.

Just because you were found behind the wheel of a car with the keys in the ignition does not necessarily mean that you were driving or "operating" a motor vehicle while intoxicated under New York DWI law. Yes, in order to be found guilty of a DWI in New York, the prosecutor must be able to prove that you were actually "operating" the motor vehicle while you were intoxicated. But while this may sound simple, it is anything but. Over the years, New York courts carved out rule after rule on how the prosecution must prove this element. And these rules may just be the reason your DWI case gets dismissed.

"Operating" a motor vehicle is defined under Vehicle and Traffic Law section 1192 as "proof beyond a reasonable doubt that the defendant had recently driven the vehicle or by such proof that he was seated at the wheel, with the motor running and with a present intention of placing the vehicle in motion." Simply put, you must have been behind the wheel intending to put the car in motion. If you are behind the wheel for any other reason, such as to sleep off your intoxication, warmth, or simply to start the car for someone else, then you may not have been "driving" or "operating" that car under New York DWI laws.

The district attorney's office must prove that you mentally intended to move that vehicle in your intoxicated state. In People v. O'Connor, a defendant was seating behind the wheel of a car with the motor running only to help the owner start the car but defendant had no intention of driving it. All DWI charges were dismissed. 607 N.Y.S.2d 856 (Nassau Co. Dist. Ct. 1994). Another interesting case came up when a defendant got behind the wheel of his car to sleep off his intoxication. While he was asleep, his foot came in contact with the clutch pedal and his car rolled backward into another vehicle. The court in that case ruled that it was impossible to determine intentional operation and DWI charges were dismissed. People v. Edwards, 601 N.Y.S.2d 539 (Oswego City Ct. 1993).

What happens if a police officer orders you to drive the car and you were intoxicated at that time? If you had no intention to drive the car but a police officer orders you to, you may be able to get your DWI charges dismissed. Here are a few examples: In People v. Asche, DWI charges were dismissed in the interest of justice where an intoxicated defendant who had no intention of driving in that condition was ordered to drive a short distance by a police officer. 669 N.Y.S.2d 788 (Nassau Co. Dist. Ct. 1998). Similarly, where a defendant was found asleep behind the wheel of his car while parked in the driveway of a private residence, he was found not be in operating of the car even though police officers instructed her to move the car and she did so. People v. Donovan, 279 N.Y.S.2d 404 (Scarsdale Ct. of Special Sessions 1967).

Proving the "driving" element in a DWI case is not as simple as it may seem. At the Law Offices of Lance Fletcher, we know how to challenge the prosecution's attempt to prove that you were in fact "driving." And we have done so in the past to the benefit of our clients. Contact us for a case evualuation.