When an officer goes up to a parked car because the driver is sitting in the car leaning against the driver’s door and sees the person is ok after walking up to the car can they continue the encounter by asking dwi questions?
Your question really goes to whether the government can prove the "D" in New York DWI when a car is in fact parked.
A critical element with any NYS DWI case is whether there was in fact the "D" as in Driving. Under NYS DWI law Driving really means "operating" and the difference between the two words (terms of art) is crucial.
For direction on this question we look to what a NYS judge will give to a jury for guidance on this issue. Keep in mind that "Operate" is a much broader term than "Drive" under New York law.
NYS Jury Instruction " A person operates a motor vehicle when that person is (found) sitting behind the wheel of that motor vehicle for the purpose of placing it in motion, AND when the motor is running, OR even if it is NOT moving when the engine (motor) is running."
Your intent (purpose) of being in the car is very important to the question of whether you are in fact operating the car (or plan to). The prosecutor must prove this beyond a reasonable doubt by the facts present. All the details (circumstances) of your case can be crucial to the defense of the case. Having a suppression hearing (challenging the evidence) in matters like these can mean the difference between winning and losing. The case below was won at the suppression level (following the hearing).
A recent NY case, People v. Ramsey 2012 NY Slip Op 50672 decided on April 16, 2012 Supreme Court, Bronx County, operation (driving) was not found (no intent) based upon:
1. car parked legally,
2. car was off (ignition turned off)
3. Key in only for purposes of playing CD music
4. police testimony failed to show ignition was engaged, assumed it was for music to play
5. car was never moved
The Supreme Court concluded that there was in fact no evidence of car movement or intent to move the car from the location it was parked. Defendant's right to privacy (4th amendment) was violated. Court determined that the police lacked Probable Cause, thus the Suppression of evidence of breath test and DWI case is mute.
Regarding operation of a car, See case of People v. Dalton, 176 Misc 2d 211 (2nd Dept., App Ter,. 1998). If DWI case, parked car, and ignition is NOT engaged see People v. Haddock, 2001 NY Slip Op 40138U (Nassau County).
Police officers can always ask questions, certainly if they have reason to believe that criminal activity is afoot. Keep in mind that being in the drivers seat of a vehicle with the keys in the ignition, even if parked, would be sufficient for a DWI charge if the person is intoxicated.
Joseph A Lo PiccoloCriminal Defense AttorneyGarden City, NY ·
Yes, they can.
Joseph A. Lo Piccolo, Esq.
Immediate Past President, Criminal Courts Bar Association 11'-12'
Hession Bekoff & Lo Piccolo
1103 Stewart Ave, Suite 200
Garden City, NY 11530
516-408-3666 (o) / 516-408-3833 (f)
[email protected]
Seeing the person is ok i.e. not injured would not prohibit the officer from asking questions about what condition the person was in due to alcohol, drugs, lack of sleep, etc in order to determine whether or not this person was fit to drive a motor vehicle.
While its commonly referred to as "Driving While Intoxicated" the law says that nobody should "operate" a motor vehicle while intoxicated. "Operate" is given a broader definition than "driving" and under your facts a person could poetentially be charged with a DWI.
