DWI in New York - Driving NOT Required
Posted By Michael Redenburg on Jan 15, 2012 12:45pm PST
Most people would assume that in order to be found guilty of DWI, Driving While Intoxicated, the person so charged would have to be "driving" a motor vehicle while in an
intoxicated state; however, this is not the case. Vehicle & Traffic Law Section 1192(3), VTL§1192(3), reads, "no person shall operate a motor vehicle while in an intoxicated condition." Notice the absence of the word "drive;" and the term "operate" as used in the statute is much broader than the conventional definition of driving.
In fact, in an Appellate Term, Second Department case, the Court stated that operation of [a] vehicle is established on proof that [a] defendant was behind the wheel with the engine running without need for proof that the defendant was observed driving the car, i.e., operating it so as to put it in motion.
People v. Khan, 182 Misc. 2d 83; 697 N.Y.S.2d 457. In this case, the defendant was found sleeping in a parked car at about 10PM with the motor running and the issue on appeal was whether the police had probable cause to arrest the defendant, and charge him with violating VTL§1192 when the defendant was not observed
driving the vehicle. The Court looked to
People v. Alamo (34 NY2d 453, 458) which held that for purposes of offenses for driving while intoxicated under the Vehicle and Traffic Law, operation of the vehicle is established on proof that the defendant was merely behind the wheel with the engine running without need for proof that the defendant was observed driving the car, i.e., operating it so as to put it in motion.
Id. at 84. Therefore, the Court found that the trial court had erred in granting the defendant's motion to suppress the results of the breathalyzer test on the ground that the police lacked probable cause to arrest.