Many people believe they can only be charged with a DWI if they’re actively driving a vehicle. However, New York law takes a broader approach to impaired driving. You can face charges even if you weren’t moving, provided you were in physical control of the vehicle.
At the Law Office of Michael D. Litman, PLLC, our Westchester County DWI lawyer represents clients throughout the surrounding areas, including White Plains, Harrison, and Yonkers. We’ve seen many cases where individuals were charged despite never putting their car in motion.
Understanding how New York defines “operation” and “physical control” is crucial for anyone facing these charges. Contact our criminal defense attorney today if you’re facing a DWI and want a strong advocate in your corner.
Under New York Vehicle and Traffic Law § 1192, it’s illegal to operate a motor vehicle while under the influence of alcohol or drugs. The key word is “operate.” Unlike some states that require proof of driving or movement, New York courts have interpreted “operation” broadly.
Operation can include any act that sets the vehicle in motion—or even the potential to do so. For example, simply turning on the engine or sitting behind the wheel with the keys in the ignition may be enough to support a DWI charge.
As a DWI attorney, we’ve handled numerous cases where clients were arrested in parked cars because officers believed they were in control of the vehicle.
Physical control refers to a person’s ability to start, move, or otherwise direct a vehicle while impaired. In New York, prosecutors don’t need to prove that the car was moving when the officer arrived. They only need to show that the accused had the intent and ability to operate it.
Factors that may suggest physical control include:
Location of the driver: Sitting in the driver’s seat can indicate control.
Position of the keys: Keys in the ignition or within reach can imply readiness to drive.
Engine status: A running engine is strong evidence of potential operation.
Vehicle placement: A car parked on a roadside or in traffic suggests intent to drive.
Statements made: Admitting to having driven earlier can support a charge.
Each of these factors can influence how a court interprets physical control.
Even if you think you’ve made the safe choice by not driving, certain actions can still lead to arrest. We often see DWI cases involving:
Sleeping in a parked car: If you’re found asleep in the driver’s seat with the keys nearby, you can still face charges.
Warming up the car: Turning on the engine to stay warm after drinking can constitute operation.
Waiting in traffic: Being stopped at a light or intersection while impaired still qualifies as driving.
Pulling over after realizing impairment: Even if you stop voluntarily, you may still be considered in operation.
Parking in a public lot: If the car is accessible and the person is behind the wheel, police may infer intent to drive.
These scenarios highlight how easily a person can be charged, even with good intentions.
When police approach a parked or stopped vehicle, they make several observations before making an arrest. Officers look for indicators of recent operation, such as:
Warm engine components
Tire tracks suggesting movement
Lights or radio turned on
Open containers in the vehicle
Statements from the driver admitting prior driving
They may also use field sobriety tests and portable breath tests to assess impairment. As a DWI attorney, we examine these details carefully to determine whether law enforcement had sufficient evidence to claim physical control.
The penalties for a DWI based on physical control are the same as those for actively driving while intoxicated. These may include:
Fines and surcharges: Ranging from hundreds to thousands of dollars depending on prior offenses.
License suspension or revocation: Even a first-time conviction can result in license loss.
Possible jail time: Repeat offenses or high blood alcohol content (BAC) cases may lead to incarceration.
Probation and community service: Courts often impose additional conditions for rehabilitation.
Ignition interlock devices: Required in many cases for continued driving privileges.
The consequences can affect employment, housing, and personal relationships long after the case concludes.
While these cases can be challenging, several defenses may apply. Common defense strategies include:
Lack of operation: Demonstrating that the defendant never operated or intended to operate the vehicle.
Location defense: Showing the car was safely parked and not posing a danger to others.
Insufficient evidence: Challenging the prosecution’s claim of control or intent.
Unlawful stop or arrest: Arguing that police lacked reasonable suspicion or probable cause.
Inaccurate testing: Questioning the reliability of breath or blood test results.
Every case is different, and the best defense depends on the specific facts and evidence available.
Two of the most important factors in these cases are where the vehicle was located and what the driver intended to do. A car parked in a private driveway, for example, presents a very different situation from one parked on a public street.
If the person had no intention of driving and took steps to avoid doing so, such as sleeping in the back seat or keeping the keys out of reach, those facts may help the defense. As a DWI attorney, we emphasize these distinctions to show that our clients acted responsibly despite their circumstances.
Strong evidence is critical for challenging DWI charges based on physical control. Useful evidence may include:
Witness statements: Friends, bartenders, or bystanders who can confirm the person didn’t drive.
Surveillance footage: Video showing when the person entered or exited the vehicle.
Vehicle data: Modern cars record information like engine start times and seat sensor data.
Weather conditions: Extremely cold temperatures may justify sitting in a car with the heat on.
Time lapse: Showing that the person stopped driving long before the police arrived.
We gather and analyze all available evidence to create a clear, factual picture of what really happened.
Prosecutors in New York often argue that being in a position to drive constitutes control, even if the person never moved the vehicle. They may rely heavily on circumstantial evidence, such as engine warmth or key placement.
However, circumstantial evidence isn’t always conclusive. We work to identify inconsistencies in the prosecution’s case, highlight alternative explanations, and question assumptions about intent. The goal is to create reasonable doubt about whether our client was truly operating the vehicle.
If you’re arrested for DWI while not driving, taking immediate action is critical. Key steps include:
Remain calm: Cooperate respectfully with law enforcement but avoid self-incrimination.
Document everything: Write down what happened before, during, and after the arrest.
Request legal representation: Contact a qualified DWI attorney as soon as possible.
Preserve evidence: Keep receipts, text messages, or other records that may support your defense.
Attend all hearings: Missing court dates can worsen penalties.
Quick and informed responses can significantly improve the chances of a favorable outcome.
DWI cases involving physical control are intricate and often hinge on subtle legal distinctions. Without legal representation, defendants may not know how to challenge the state’s assumptions or present favorable evidence.
At the Law Office of Michael D. Litman, PLLC, we understand how prosecutors build their cases and how to counter them effectively. As an experienced DWI attorney, we work to protect our clients’ rights, challenge questionable evidence, and negotiate for reduced penalties or case dismissals whenever possible.
At the Law Office of Michael D. Litman, PLLC, we represent individuals charged with DWI throughout Westchester County, New York, and nearby communities, including White Plains, Harrison, and Yonkers. Even if you weren’t driving, a charge based on physical control can have serious consequences.
As a dedicated defense law firm, we help clients understand their rights, explore their defenses, and work toward the best possible outcome. Contact our office today for guidance and representation.
Many people believe they can only be charged with a DWI if they’re actively driving a vehicle. However, New York law takes a broader approach to impaired driving. You can face charges even if you weren’t moving, provided you were in physical control of the vehicle.
Facing charges for vandalism or trespassing can feel overwhelming and stressful. Many of our clients are anxious about the legal process, potential fines, and the effect on their record. We understand these concerns and provide clear guidance every step of the way.
