In New York, Can I get a DWI if I’m not Driving?

In New York, a person does not have to actually be driving a car to be arrested for a DWI, so if you were arrested in New York for a DWI and your engine was not running or you were not sitting in the driver’s seat, it is still critical to speak with an experienced DWI attorney who can help protect your interests.

DWI While Sitting in the Car in New York

Totality of the Circumstances

Even when a driver is not actually driving a car, but is merely sitting in the driver’s seat and is intoxicated, he or she can be arrested for a DWI. However, the prosecutor will still be required to prove beyond a reasonable doubt that the driver was operating or in physical control of the vehicle at the time of the arrest. To make this determination, a judge or jury considers a series of factors using a totality of the circumstances approach, including:

  • The location of the car;
  • The location of the driver;
  • The location of the car keys;
  • Whether the car’s engine was running; and
  • Whether the driver was awake or asleep.

Vehicle Location

The location of the vehicle is one of the most important factors used to determine whether a driver was actually in physical control of his or her car. For instance, someone who was arrested while parked in a driveway is much more likely to be found not in control of his vehicle than is someone who was parked in the middle of the road. This is because the vehicle’s location reveals that the defendant was driving at some point before law enforcement arrived.

Driver’s Location

The location of the driver is also an important factor in a totality of the circumstances analysis. Generally, the fewer steps that a driver must take to start the car, the more likely he or she will be found to have been in control of the vehicle. This means that someone in the driver’s seat is more likely to be found guilty even if the car wasn’t started than someone asleep in the back seat or on the ground next to the car.

Car Keys

The location of the driver’s keys can also be instrumental in establishing whether he or she was in control of the car, so if a driver does not have keys on his or her person, he or she was obviously not in control of the vehicle. However, if the keys were already in the ignition or on the driver’s person, it will be more difficult to demonstrate a lack of control.

Whether the Car’s Engine was Running/ Driver’s Alertness

If a car was already started when the driver was arrested, his or her location at that time will play an even more important role in determining control. For instance, a person who was asleep in the driver’s seat while the engine was running is more likely to be in physical control than someone who is in the back seat with the engine running. The possibility that an intoxicated and sleeping driver could wake up also makes an analysis of the other factors, including where the driver was sitting, whether the car keys were in the ignition, and the location of the vehicle when he or she was arrested especially important to the outcome of a case.

Contact an Experienced New York Criminal Defense Attorney

If you were arrested for a DWI, please contact the legal team at the Law Offices of George Vomvolakis today. We are eager to help protect your rights and assist you throughout each step of your case.