Can You Get a DUI if You Are Not Driving?

Were you arrested for a DUI, but you weren’t…driving?

It sounds crazy, but you can get a DUI even if the police did not see you driving.

This article discusses the circumstances when the police can arrest you for DUI even if the police did not observe you driving.

If you have been charged with a DUI in New York City and the police did not observe you driving, contact Cody Warner for a free consultation. He is very experienced handling DUI cases, and he routinely convinces juries to acquit his clients. He can assess whether you have a strong operation defense that could result in your charges getting dropped.

What are the Elements of Driving While Intoxicated?

In New York, you can face different kinds of DUI charges. The most basic form of DUI charge is Vehicle and Traffic Law (VTL) 1192.3.

 A person commits VTL 1192.3 when he:

1. Operates;
2. A motor vehicle;
3. While intoxicated.

In most cases, the third element—intoxication—is at issue. In other words, in most cases it’s obvious that a person was operating a motor vehicle. The real question in those cases is whether the person was intoxicated.

However, the first element—operation—is sometimes at issue. Imagine this scenario: the police see a person sleeping in the driver’s seat of a parked car with the engine running. The person reeks of alcohol and admits to being wasted.

In that example, was the person driving while intoxicated? To answer that question, we need to dig deeper into how “operation” is defined in New York.

How is Operation Defined?

In New York, a person operates a motor vehicle when:

1. He sits behind the wheel of a motor vehicle;
2. For the purpose of placing the vehicle in motion;
3. When the motor vehicle is moving, or even if it is not moving, the engine is running.

Let’s apply this rule to our previous example. Again, the person is asleep in the driver’s seat of a car with a running engine.

Was the person operating the motor vehicle? Well, elements #1 and #3 are clearly established. The person was found behind the wheel of a motor vehicle (element #1). The motor vehicle was not moving, but the engine was running (element #2).

The real question in this scenario is whether element #2 was established. Was the person behind the wheel for the purpose of placing the vehicle in motion? The answer to that question depends on the details of the incident. What additional facts did the police observe?

The specific details of the incident could be the difference between a false arrest and proof of guilt beyond a reasonable doubt.

Let’s explore some additional facts to see how element #2 of “operation” could play out in different cases.

Examples of DUI Arrests With No Observed Driving

Let’s use the same basic fact pattern as above. (A person is intoxicated in the driver’s seat of a car with a running engine, but the police never saw the driver move the vehicle.)

Adding some additional facts, let’s say that the vehicle is in a ditch. Additionally, the car’s bumper is damaged. In this scenario, the police have strong evidence that the person operated the car while intoxicated, because the car was arguably in a wreck. In other words, it’s unlikely that a sober person drove their car into a ditch while sober, then got drunk and went to sleep in the driver’s seat with the car engine still running.

On the other hand, let’s say that the car is parked perfectly in a legal parking spot. The engine is running, but it’s 20 degrees outside and the person would need the engine running to use the heater. In this scenario, it’s very possible that the person was drinking, but decided to sleep off the alcohol instead of driving home. Although the engine was running, the person did not have the intent to place the vehicle in motion. The person just wanted the car’s heat to be on. This person would have a great argument that he did not operate the motor vehicle while intoxicated.

However, let’s say the person told the police that he was out drinking but pulled over to sober up. The person essentially admitted that he operated the vehicle while intoxicated, albeit briefly before deciding to sleep it off. In this scenario, the person would not have a good case. That said, it could be the case that he was not yet intoxicated when he pulled over, because his body had not yet absorbed the alcohol into his bloodstream.

Need Help?

As you can see, DUI cases can be tricky. The details of each case affect the ultimate outcome. However, a skilled lawyer can thoroughly investigate your case and extract all the relevant details to develop strong arguments for acquittal.

If you are charged with DUI charges, contact experienced DUI lawyer Cody Warner for a free consultation. He can evaluate your case to determine the best strategy for moving forward.