New York DWI and DUI Crimes: Difference Between Operating and Driving a Motor Vehicle

In New York, one requirement of a DWI Offense, such as Vehicle and Traffic Law 1192(2) or 1192(3), is that the person accused of drinking and driving was “operating” the motor vehicle. “Operating” is an interesting choice of words. It’s worth noting that the drafters of the statute deliberately chose this word rather than the more conversational “driving.” This may seem like an arbitrary distinction, but any competent DWI lawyer can tell you it is not. Add to the legal analysis the complexities of cases where the person charged with a DWI was never actually observed driving the car, you can see how things can get “hairy.” Having a criminal defense attorney with expertise in the area of DWI is critical in identifying the shortcomings and complexities of a DWI case and ensuring that your rights are protected along the way.

In People v. Zernitsky, a recent case in Bronx Criminal Court in New York City, the defendant sought to have his case dismissed on the grounds that the allegations, even if true, did not establish that he “operated” the motor vehicle in question. In Zernitsky, the defendant was observed in the driver’s seat of the vehicle, the car was stopped in an active traffic lane on a public highway with a blinker on. Allegedly, Zernitsky stated to police officers that he was going home and had two beers. This is the kind of scenario that arises often in the context of DWI arrests in Queens, Brooklyn, Manhattan, and throughout New York City, as well as Rockland and Westchester Counties and throughout the Hudson Valley – police arrest a person they believe to be intoxicated in or near a stopped or parked car that they believe he or she was driving at some recent time.

The question for the Court then becomes – are these allegations enough to establish reasonable cause to believe that the person had been operating the motor vehicle in the condition described in the criminal complaint. This is not proof beyond a reasonable doubt, just enough evidence that, assuming it’s all true, gives reason to think that this person might have been driving the car. In Zernitsky, the judge decided that yes, the allegations were enough to meet this low threshold – his statements suggested he had been driving, he was still in the driver’s seat, a blinker was on, which would be unusual for a car that had been parked for a long period of time, and he was in an active lane of traffic, not a parking spot, for example.

While Zernitsky doesn’t seem like a particularly close call, there are far more borderline cases that arise every day in New York courts. Cases in which a person is sleeping in the back seat of their car that is parked in a parking lot, and he or she is charged with Driving While Intoxicated, commonly referred to as DUI. Another common scenario is a person seemingly walking away from their parked vehicle, and the police believe for whatever reason that they were just recently driving that car. If it is not clear already, understanding New York’s drunk driving statutes, and educating yourself on New York DWI crimes and New York DUI laws, is critical.

Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Saland Law PC represent clients in DWI cases throughout the New York City and Hudson Valley region.

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