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| Ron Burgundy...asleep at wheel. Image courtesy marketmenot.com |
DEFENDING A DWI in NY
...when you're caught asleep in your CAR
This is a pretty common occurrence in New York and every other state in the USA. Usually the most common scenario that leads to this situation is:
-You're out drinking
-You have too much
-You don't have a plan to get home
-You start to drive home and realize it would be safer to just pull over
That's when you decide to just "sleep it off" in your car. That's where the police find you, and you get charged with DWI or worse.
PROVING "OPERATION" in New York
If you are charged with a DWI, that means in order to prosecute you, the government must prove beyond a reasonable doubt that you, in fact, did everything that meets every single element of the crime.
For a DWI that means:
-You DROVE (actually moved or intended to move vehicle)
-a MOTOR Vehicle (must have a motor -excluding boats or snowmobiles [they have separate charges])
-While you were INTOXICATED (either common law or over 0.08% BAC)
-on a public road or street
In a "Sleeping Case" the government must prove beyond a reasonable doubt that you drove --or intended to move the vehicle. In general, there are two different types of "operation issue" cases: 1) the type where a driver drove someplace while intoxicated and pulled over to sleep it off; or 2) where the driver never drove or intended to drive and just tried to sleep it off in their car--but still got charged.
These cases are tricky because the government can prove operation by circumstantial evidence. In other words, they can make an inference that you drove your car based on some of these common factors:
-you admitted to driving
-the engine was running or hood was warm
-a witness saw you drive
-camera footage shows car in motion prior to your sleeping
-there was a car accident (you drove off road)
-car was found in a place that could only be reached by driving (like side of a highway)
In the TYPE 1 case (where you drove then were found asleep in your car), it is usually easier for a prosecutor to prove that you, in fact, drove the car. That means that the "operation" element of the crime can typically be proved by the sort of circumstantial evidence mentioned above. However, that doesn't mean that the case is indefensible. It means that we would have to focus on something other than whether or not you drove a car.
Some examples include: We would try to fight the breath or blood test (unless you refused), or fight the field sobriety tests (if you took them), or any other aspect of the case. It is always prudent to put your best foot forward so the focus should be on the weakest aspects of the government's case against you.
HOWEVER, if you are charged in a TYPE 2 case (where you were found asleep but you DID NOT actually drive), then we potentially have a case we could fight all the way to trial. The prosecutor must prove beyond a reasonable doubt that you Operated a Motor Vehicle. Under NY case law, Operation includes a requirement of your "intent to move" the car. They must prove that. It makes their job harder if the truth of the case is that you never intended to drive and just wanted to sleep. But it is still an absolute necessity to retain an attorney who will fight for you because District Attorneys generally won't DISMISS A CASE without tons of good reason --and sometimes, even if the reasons are good, they may feel compelled to try a case to completion.
Even in a TYPE 2 scenario, a typical DA will worry that even if you didn't actually drive, you were drunk and in a car--and that presents a potentially dangerous situation for anybody else on the road. That's the concern we are fighting from the beginning of any case like this. Both the Judge and Prosecutor will be worried about that behavior. So we have to take steps to prove that --even in the event of a dismissal of the case--that you are not a danger to people on the road.
*If you are charged with a DWI or DWAI (Drugs) after falling asleep in your car, give me a call for a Free consultation:
607-229-5184
By Attorney Mike Cyr
www.ithacadwi.com
www.facebook.com/ithacadwi
www.twitter.com/ithacadwi
CYR & ASSOCIATES 2015
