Everyone’s talking about a slow, cautious reopening these days, even here in NYC. It’s not happening yet, but it’s not outside the realm of possibility that some New Yorkers will be congregating in bars again…even if they’ll be doing it six feet apart.

So this means it’s a good time to go over some of the finer points of DWI law in New York as this, more than ever, is not a good time to be arrested for any reason.   

Especially since yes, you can get a DWI if you’re sitting in the driver’s seat of a parked car. Here’s what the police look at.

Is your BAC over the limit?

If you’re BAC is over the limit you’re better off staying out of a driver’s seat or holding car keys, period. Your BAC being over the limit—or a police officer’s belief your BAC is over the limit—will provide the baseline for the state’s DWI case.

If you’ve been drinking, it’s best to get an Uber, get a taxi, or stick to a passenger seat while someone  else (who is sober) drives.

Was the car running?

New York State laws regarding operating a motor vehicle while under the influence of alcohol says: “No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.”

Note that operating a vehicle isn’t the same as driving a vehicle. It’s a lower standard. You start operating the vehicle the moment the engine is running.

There are some exceptions. For example, in People vs. Ramsey a defense lawyer was successful in getting evidence suppressed because the defendant had only been sitting in a parked car with the key turned just enough to engage the CD player, not the engine. The defendant had also left the car in its original parking spot. 

Was there evidence you’d operated the vehicle while drunk?

Where the car was parked matters a great deal. 

For example, if you’re still parked at the bar when you got drunk you are less likely to be arrested for DWI than if you are several blocks away. In People vs. Hryckowian, police arrested a man who had been asleep in his car in a parking lot. The parking lot was between his mother’s house,where he’d had his drinks, and his destination (his home). He had a 0.19% BAC and he had given the police  a story about where he’d been and what he’d been doing that didn’t line up with other facts and testimony. 

The court ruled: “A driver found slumped behind the steering wheel in a remote location, with an odor of alcohol on himself and in the vehicle, and with a BAC of over .08, is sufficient to establish the requirement that the driver operated the motor vehicle while intoxicated, even though the vehicle was stopped (the theory being that the driver had to have driven the vehicle to the location).”

In this particular case, the driver wasn’t even in the car when the state troopers approached him. He was standing just outside. Nevertheless, the court ruled there was sufficient credible evidence to permit the jury to find the elements of Aggravated DWI and DWI beyond a reasonable doubt. 

Was there evidence of intent to operate the vehicle while drunk?

Intent often matters in criminal cases, and it matters here too. If you stagger out of the bar with your car keys in hand, approach the driver’s side of your car, and then start to open your locked car door so you can get behind the wheel, police can arrest you. They can then charge you with a DWI because it was evident you had every intention of operating the vehicle while drunk. 

It may be a hard to argue,  for example, that you only intended to gather something from your car.  Either way, an arrest can still be made, disrupting your life and putting you in the court system. You’ll need a good attorney to help you navigate the case.

Need help? Contact the Law Offices of Julie Rendelman. We’re able to do virtual consultations, and we’re happy to help.

See also:

Are DWI Tests Reliable?

Can I Get a DUI For Taking Benadryl?

Traffic Crimes in New York City 

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