Driving While Intoxicated Without Actually Driving

Most people are shocked to find out that they can get arrested for Driving While Intoxicated (“DWI”) even though they never actually drive their vehicle. If you are legally intoxicated, get into the driver’s seat of your vehicle and PUT THE KEY IN THE IGNITION, then you run the risk of being arrested for DWI. I know that this sounds crazy, but it’s true.

The most common scenario is where someone comes out of a bar or nightclub and realizes that he/she drank too much. That person often decides to “sleep it off,” which generally is a good idea, but not so when the driver’s seat is the bed of choice. That’s because the intoxicated person almost always makes the fatal mistake of putting the key in the ignition in order to turn on the radio. Even worse, many people go the extra step and start the vehicle to utilize the heat or air conditioning. This is often followed by the police officer tapping on the window to wake you up and arrest you.

New York State case law recognizes a presumption of operation if the keys are in the ignition. In other words, the law permits the police officer and the District Attorney’s Office to infer that one who places the keys in the ignition intends to drive the vehicle. Quite naturally, the presumption becomes stronger if the vehicle is actually running. Thus, if you have too much to drink and decide to “sleep it off’ inside your vehicle, keep the keys in your pocket and get into the back seat. It’ll be very tough for the D.A. to prove that you intended to drive if the car is off and you are far away from the controls.

People who were “sleeping it off,” even in the front seat, and get arrested for DWI, have the ability to win at trial. Such an outcome can never be guaranteed, however, the hope is that most jurors will be sympathetic when hearing that you tried to do the right thing and never actually drove.

The smartest thing to do when you’ve consumed alcohol, even one drink, is not to drive! The $50 cab ride will end up being a lot cheaper than the costs associated with a DWI arrest. If you plan on drinking, think ahead and come up with a method of getting home that does not include driving (e.g., cab, designated driver, mass transit, etc.).

If you didn’t do this and ended up getting arrested for DWI, call me now (718-793-5555) to discuss your options. All is not lost if you act quickly and start preparing your defense during the early stages of the case.

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