New York DWI / DUI Laws – VTL 1192: A NY DWI Lawyer Explains the Difference Between “Driving” and “Operating” Under the Law

New York DWI and DUI Laws (Driving While Intoxicated and Driving Under the Influence) are codified in the Vehicle and Traffic Law. More specifically, New York VTL section 1192 is where the various charges for drunk driving can be found. Regardless of the particular subsection, an experienced New York DWI attorney will tell you that the critical element of any DWI or DUI charge is that the person accused must be “operating” the motor vehicle. This operation does not mean the person must actually be driving the vehicle. In other words, the car need not be moving down the street or highway as the defendant is applying the gas and steering the vehicle.

To better understand the difference between “driving” and “operating,” consult with your New York DWI lawyer who can explain the charges against you and how the evidence in your case does or does not fall within the bounds of the law. Having said that, the following article may be a starting point to educate yourself so you can vet your case with your counsel and he or she can properly advise you.

Operation of a Motor Vehicle

While driving a motor vehicle is certainly operating the same, if the engine is running, but the automobile is not in motion, is it being operated? For example, if it is a bitter cold night and you decide to sleep off your intoxication in your car and you turn the engine on to pump up the heat, are you operating the vehicle as it is sits idling? Certainly, the car is not in motion and it is not being driven. So are you operating that car?

Assuming your case went to trial, a judge will substantially instruct a jury (by utilizing the New York jury instructions revised in 2008) as follows:

“A person also operates a motor vehicle when such person is sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion, and when the motor vehicle is moving, or even if it is not moving, the engine is running.”

The jury instructions further address “operating” in a footnote for the court’s review:

“The purpose of the revision was to provide a clearer definition of ‘operates’ by removing the language ‘for the purpose of placing it in operation’ and replacing such language with ‘for the purpose of placing the vehicle in motion.’ See People v Alamo, 34 NY2d 453, 458 (1974); People v Marriott, 37 AD2d 868 (3d Dept. 1971); People v. O’Connor, 159 Misc.2d 1072, 1074-1075 (Dist.Ct., Suffolk, 1994). See also People v. Prescott, 95 NY2d 655, 662 (2001).”

As you can tell from reading this excerpt, the “old” law defined “operation” as the “purpose of placing it in operation.” The new instructions changed the definition to one that specifically requires putting the vehicle into motion. The difference is clear and critical. The new language requires that your intent be to not merely have the car running, but to actually have the intent to put the vehicle in motion, ie, to drive the automobile.

Don’t get too excited about the above jury instruction and case law. While the law requires that “operation” include an intent to put the vehicle in motion and the prosecution must prove this element beyond a reasonable doubt, merely stating that you lacked the intent will likely not be convincing. It is the facts and evidence before the court and jury that will be crucial. Was the car in a parking space on the street? Had the steering wheel or tires been moved to point outward? Was the heat running? Was your seat belt on? What did you say at the time of your arrest, if anything? While the law may be on your side, your New York DWI lawyer will still want and need corroboration of your intent in some capacity. Just stating you had no intent to move the vehicle may not be enough even though the prosecution has all of the burden. Regardless, an experienced New York DWI and DUI attorney will do his or her best to craft a defense around this intent (or lack of thereof).

Founded by two former Manhattan prosecutors, the New York criminal lawyers at Saland Law PC represent clients accused of DWI and other crimes throughout the New York City region. For additional information on DWI and DUI laws as well as other New York Penal Law statutes, legal decisions and cases in the news, please review the Saland Law PC website and the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com).

Contact Information