Driving While Intoxicated in New York (DWI & DUI): Probable Cause to Arrest for VTL 1192 When the Vehicle is Not in Motion

As a New York criminal defense attorney and former Manhattan prosecutor I have represented and prosecuted a significant amount of people for DWI / DUI crimes including Vehicle and Traffic Law (VTL) sections §1192.3, §1192.2 and §1192.1. On occasion, an accused asserts that they in fact were not “driving” the vehicle and, therefore, are not guilty of these offenses. While there may be merit to such a defense, where do courts stand on this issue not as a defense at trial, but as it relates to probable cause for the police to make the initial arrest? In other words, if you were merely warming up in the vehicle with the engine running, but not moving or “operating” it otherwise, would the police have probable cause to arrest you once they approached your vehicle, smelled the alcohol, etc.? While each case requires its own unique analysis, a Suffolk County District Court (a similar level court to a New York City Criminal Court that handles misdemeanors), recently addressed this issue.

In People v. Ciccone, 2008SU50102, the accused was charged with Operating a Motor Vehicle Under the Influence of Alcohol or Drugs in violation of New York State VTL §1192.3. In that case, the police officer observed the defendant’s vehicle on the shoulder of the road. When he approached, the officer observed the defendant sleeping in the driver’s side with the engine running. Knocking on the window, the officer smelled alcohol on the defendant’s breath once the window was lowered and the defendant woke up. After that, the officer observed numerous other signs of the accused’s alleged intoxication and ultimately arrested him.

Although there were other alleged offenses and issues raised, the defendant’s attorney challenged the police officer’s probable cause to arrest his client based on his position that his client was not “operating” the vehicle. Despite his contentions and legal arguments, the court disagreed.

Continue reading for the court’s decision and analysis…
In finding that the police had probable cause to arrest the defendant, the court stated “[t]o operate a motor vehicle means to drive it. A person also operates a motor vehicle when such person is sitting behind the wheel of a motor vehicle for the purpose of placing it in operation and when the motor is running, or even if it is not moving, the engine is running.”

Not ending there, the court cited the Court of Appeals (New York’s highest court):

“An established line of authority in New York and elsewhere holds that for the 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, ie., operating it so as to put it in motion.”

Although this particular defendant was not successful, whether one has grounds to successfully challenge the probable cause of one’s arrest for DWI / DUI or any other criminal offense, is not the same as whether or not one has a viable defense at trial. Crotty Saland PC is a New York criminal defense firm representing clients throughout the New York City region. Prior to starting Crotty Saland PC , the two founding criminal defense attorneys served as prosecutors in the Manhattan District Attorney’s Office and worked in boutique criminal and civil litigation firms.

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