New York DWI Arrests and Convictions: NY VTL 1192 Prosecutions When You are Not in the Car or Vehicle

It seems as if issues involving DWI, DUI and DWAI arrests routinely “pop up” all over the country and here in both New York State and New York City. The obvious reason as to why this happens is because DWI is an extremely serious, avoidable and potentially catastrophic offense. Whether you are charged with VTL 1192.4, VTL 1192.3 or VTL 1192.2 (or a felony DWI offense), the consequences to your career, financial future, and family is significant. Wrongfully accused or not, you must not only be prepared to defend yourself against the accusation of driving drunk, but you must have at least a general understanding of the law. This particular NY DWI blog entry will deal with the scenario where an accused drunk driver exits his or her vehicle prior to the police arriving and, therefore, the police cannot observe or confirm the accused was actually driving the vehicle in violation of VTL 1192. The question that we are left to tangle with is whether or not the prosecution can sustain a charge of Driving While Intoxicated or Driving While Ability Impaired circumstantially.

In People v. Stafford, 2015BX013526, NYLJ 1202738145591, at *1 (Crim., BX, Decided August 10, 2015), the defendant was arrested and charged by the NYPD and District Attorney respectively with Driving While Intoxicated (VTL 1192 and VTL 1192.3) and Driving While Ability Impaired (VTL 1192.1). It was alleged in the complaint that the defendant was standing outside his damaged vehicle (the bumper was off) and attempting to start the vehicle while placing the keys in the ignition. Although the vehicle would not start and was in the middle of the roadway, the defendant was not inside driving the car. He did, however, state in substance that he leased the car, it was his car and that he had gotten into a car accident. As such, even though there was no direct evidence of the car being driven by the defendant, the defendant mad an admission.

Although the defense attorney made numerous challenges to the legal sufficiency of the accusatory instrument charging the defendant with DWI, this entry will deal with the issue presented above. In finding that the document was legally sufficient, the court relied on earlier decisions from equal and higher level courts.

In People v. Booden, 69 N.Y.2d 185 (1997), the defendant was arrested and charged with DWI even though when the police arrived he was standing next to, but not inside, his vehicle. The defendant admitted he was driving and handed over his drivers license. The Court of Appeals, New York’s highest court, held that even though it was circumstantial (not direct), the type and amount of evidence was legally sufficient to establish (at the pleading stage), the defendant was operating the car.

The Court then examined another case similar to Stafford. In People v. Espanda, 11 Misc.3d 1067(A) (Crim Ct, Queens County 2006), the defendant was also charged with DWI, but as it related to drugs. There the defendant stated he was operating the vehicle and more specifically that “he was trying to park and he might of tapped the parked vehicle and that he had a few beers.” The admission along with other evidence was sufficient to sustain the charge on the accusatory information even though the arresting officer did not actually see the defendant inside or operating the motor vehicle.

These cases make it clear that you need not be seen by a police officer, or any witness for that matter, operating a motor vehicle. This particular element can be satisfied circumstantially. Whether prosecutors are successful in doing so rises and falls with the statement of facts in each accusatory instrument. While it may be too late if you are reading this now, always remember that you  should be polite and respectful, but what you say can and will be used  against you in your court proceeding.

Saland Law PC is a New York criminal defense and DWI defense established by two former Manhattan prosecutors who served in the DWI unit of Robert Morgenthau’s New York County District Attorney’s Office.

To educate yourself further about New York DWI crimes and offenses, please read the DWI section of Saland Law PC’s criminal defense website or the links found above and below.

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