State troopers were just a bit surprised when they were called to an Erie County McDonald’s restaurant last month. The report they received was that a man was asleep in the drive-thru lane. When they arrived, they found the driver, and indeed he was asleep at the wheel with the engine running. When he woke up, the first order of business was to give him some field sobriety tests, which the officers say the man failed. They also say that his blood alcohol content (BAC) was 0.14, close to twice the legal limit. He was charged with DWI.
You might be wondering how, since at the time the man apparently was not driving, he could be charged with driving while intoxicated. The answer is that the offense involves “operating” a motor vehicle. NY VAT § 1192. And operation of a vehicle can be inferred from the surrounding circumstances. The law in New York is clear that operation of a motor vehicle can be established where the defendant is behind the wheel and the engine is running.
The most interesting aspect of the story, however, is that while you might think it is indeed odd that a man would fall asleep at a drive-thru, precisely the same thing is alleged to have occurred a just few weeks ago in North Carolina. A woman, this time, was discovered slumped in the driver’s seat at a McDonald’s drive-thru. Responding police officers gave the woman two breath tests, the lower one of which registered a BAC of 0.20.
And three months earlier, in Hermantown, Minnesota, a Duluth man was discovered slumped over the wheel of his car at – you guessed it – a McDonald’s drive-thru! When police arrived, the driver told them he was ok, but when he was asked where he was coming from, the driver told them he was coming from the “Sheriff’s Office.” After analyzing the situation, they concluded that the man was “out of it,” according to one deputy. The suspect was charged with DWI.
Finally, on August 28, 2013, a New York man was arrested and charged with DWI after he fell asleep at the McDonald’s drive-thru on Route 1 in South Brunswick, New Jersey.
Strangely enough, we could go on . . .
George Vomvolakis Law Offices
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New York, NY 10016