You’ve had a great night with friends, although you may have imbibed a little too much. Instead of getting behind the wheel, you decide to sleep it off in the backseat. Or, perhaps you left the bar and sat in the front seat of your car, without ever intending to drive, when a police officer pulled up. You weren’t driving, but you were in the car. Can you be arrested?

New York DWI Laws

Some states have laws allowing officers to make a DUI/DWI arrest if someone is intoxicated behind the wheel (driving or not). However, New York laws specify that one must be operating or driving the vehicle to be charged.
Article 31, Section 1192 defines a DWI as:

Operating a motor vehicle while under the influence of alcohol or drugs. 1. Driving while ability impaired. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.

Therefore, under New York law, police officers cannot arrest you for being in the car or sitting in the driver’s seat while intoxicated. However, things change when you put the key in the ignition. If you turn on the car with no intention of driving it, this is considered “operation” of the vehicle.
Cases like these, where perhaps a person left the bar while it was raining and turned on their car on to roll up their windows and a police officer showed up, can be challenging to prosecute and defend. The prosecutor must prove that the defendant was operating or driving the vehicle. However, it is often the word of the arresting officer against the defendant’s unless actual proof exists. Proof includes a surveillance video taken outside the bar in the above scenario.

When to Contact an Attorney

If you are arrested for a DWI, it’s crucial to contact a lawyer right away. However, if you weren’t actually operating or driving the vehicle and were still arrested, it’s even more important to reach out to a defense lawyer. New York DWI lawyer Mark Cossuto can defend against unfounded DWI charges and protect your license and criminal record.
Contact the office today to learn more about DWI laws. Or call to discuss your case in detail and begin mounting a credible defense. Call now at (718) 852-8047 or (800) 609-4545.

Can I Be Arrested for a DWI If I'm Not Driving? | Brooklyn DWI Lawyer