Can I be Arrested for DWI if the Police Don’t See Me in the Car: Understanding Circumstantial Evidence in a VTL 1192 Arrest

Drunk Driving, Driving Drunk, DUI, DWI, Driving While Intoxicated…Whatever you call it, an arrest in New York for VTL 1192 has certain mandatory elements that the District Attorney must ultimately prove beyond a reasonable doubt at trial. Sure, most cases do not go to trial, but the NYPD or the County or local police in Westchester, for example, must still have probable cause to arrest a subject for VTL 1192. Simply, there must still be some level of evidence and reasonable cause to believe that you, or whomever the accused is, committed a crime of DWI. Being “drunk” is one thing, driving or operating a motor vehicle while intoxicated is quite another. One may a good time while the other endangers the lives of everyone on the road. In the realm of the New York criminal law, if there is no evidence or proof that you were operating a vehicle (not necessarily driving), then there is no criminal case. This particular blog entry addresses a scenario where the accused drunk driver was not merely not driving (double negative, but you get the point), but he was also not inside the vehicle. How then, or better yet, can prosecutors overcome a challenge to dismiss a VTL 1192 arrest in New York where neither the police nor any other witness observes or sees the defendant driving or operating a motor vehicle?

Without going into too much detail, The primary types of DWI cases in New York are VTL 1192.2 and VTL 1192.3. The latter are cases where an accused has a BAC of .08 or higher while the former are cases where there may be no reading of the BAC, but the defendant exhibits certain signs of intoxication including watery bloodshot eyes, slurred speech, etc. For the purpose of this review of the criminal law, its of no consequence whether the cahrge is VTL 1192.2 (Per Se DWI) or VTL 1192.3 (Common Law DWI). Further, both of these crimes carry the same potential sentence as misdemeanors, but VTL 1192.3 as a Refusal DWI also as a separate civil or DMV consequence of license revocation.

In People v. Booden, 69 NY2d 185 (1987), New York State’s highest court, the Court of Appeals, examined a case where the defendant was not actually in the vehicle he was convicted of operating in violation of VTL 1192.1. A violation and not a crime, Driving While Ability Impaired is a lesser offense than VTL 1192.2 and VTL 1192.3. In this case, although the defendant was not inside the vehicle, the link to the defendant was in part the fact that the vehicle was his father’s truck. Moreover, they vehicle may not have been driving or running at the time the police arrived, it was clearly in an accident and faced the wrong way across the road in a ditch. In this particular case the defendant stated to the police that in order to avoid a deer that had jumped out, the defendant swerved and crashed the truck. After smelling alcohol on the defendant’s breath, the defendant submitted to some field sobriety tests and ultimately blew a .08.

On appeal, a higher court reversed the guilty verdict because the law does not allow for an admission alone to be the bases of a conviction. There needs to be more corroboration. Taking this out of the DWI context, a jury or judge could not convict a person for killing their friend Frank based solely on the statement. Some degree of corroboration is required. This law is found in CPL 60.50 which reads: “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.” Seems fairly clear, right?

Applying the above law here, and in any DWI case where an accused is not inside a running vehicle, the Court of Appeals reversed once again in favor of the prosecution and recognized as follows:

“The section does not require corroboration of confessions or admissions in every detail, but only ‘some proof, of whatever weight’, that the offense charged has in fact been committed by someone (People v Daniels, 37 N.Y.2d 624, 629; see also, People v Cuozzo, 292 N.Y. 85; People v White, 176 N.Y. 331). Its purpose is to avoid the possibility that a crime may be confessed when, in fact, no crime has been committed (People v Lipsky, 57 N.Y.2d 560, 570, quoting People v Reade, 13 N.Y.2d 42; and People v Lytton, 257 N.Y. 310). The requirements of the rule are not rigorous and sufficient corroboration exists when the confession is ‘supported’ by independent evidence of the corpus delicti (see, People v Safian, 46 N.Y.2d 181, 187, cert denied sub nom. Miner v New York, 443 US 912; cf. People v Brasch, 193 N.Y. 46, 60-65; People v Jaehne, 103 N.Y. 182, 199-200). The necessary additional evidence may be found in the presence of defendant at the scene of the crime, his guilty appearance afterward, or other circumstances supporting an inference of guilt (see, People v Cuozzo, supra, p 92; People v Reade, supra, p 46; and see, 7 Wigmore, Evidence § 2071, at 511 [Chadbourn rev]). Corroboration existing, the evidence as a whole must, of course, establish guilt beyond a reasonable doubt.”

Here, the vehicle was the defendant’s father’s truck. The defendant possessed a valid drivers license. The vehicle had crashed and the defendant provided a story as to why and how there was an accident. The defendant was standing next to the vehicle. Lastly, but certainly not least, the defendant was intoxicated. All of this corroboration adds up to the corroboration necessary to support his admission that he operated the motor vehicle in question.

There are a major lesson here. Don’t drive drunk. While that may be the obvious lesson, that is likely not why you are reading this entry. For legal purposes, the value of this case is one that will hinder your defense. Simply, prosecutors have the ability to use an admission to corroborate you operation of a motor vehicle even if you were not doing so at the time of or immediately before your arrest. Circumstantial evidence may not always be the strongest, but can often be more than sufficient to assist the District Attorney in securing a conviction.

To better understand New York DWI and VTL 1192 crimes, examine the materials on this blog and the websites below.

Crotty Saland PC is a New York criminal defense and DWI defense law firm representing clients in the New York City region. Both founding New York criminal lawyers served in the Manhattan District Attorney’s Office’s DWI Unit prior to establishing the law practice.

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