How does a judge determine probable cause for a DWI at a probable cause hearing ?

If the police made observations of intoxication and the person was in the driver's seat and the keys were in the ignition, that is probable cause to arrest.

Cops can approach the car. If the keys are in it and they appear intoxicated, the cop can investigate further. 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]

A Judge will listen to the testimony at the hearing and make a decision based on the law.

New York has a very liberal view of "operation" when it comes to DWI cases. Ultimately it will be up to a judge at a pre-trial hearing to determine if there was probable cause.

Your facts have you: sitting in a car, not breaking any parking laws, cops coming up, and PC for a DWI arrest. You are really asking three different questions: 1. Was there driving (operation) of the car for a NYS DWI in a parked car? As my colleagues stated this is a more liberal definition under NYS law than driving. Having the intent to drive the car as evidenced by key in the ignition, car running, or recently run can suffice to prove this. see my video: Can You Get A NYS DWI in a Parked Car and blog below 2. Was there PC (probable cause) to arrest for a VTL 1192 (3) common law NYS DWI (no breath/blood test)? At a suppression hearing this could be shown/evidenced by the police: Odor of alcohol, Bloodshot/watery eyes, slurring of speech, disheveled clothing, uncoordinated movements, failure to respond to questions/directions/instructions, inappropriate responses to questions/instructions, inability to retrieve information (license, insurance, registration), issues exiting the car, poor performance on field sobriety tests, etc. See blog on dividing and conquering below 3. What can the police lawfully do if you are in a parked/stationary car? Police only require reasonable suspicion (less than PC) to approach you in a parked car. The best way to understand their level of inquiry is to the same degree as if you were standing on the street. They can come up, and ask basic pedigree questions unless they evidence more. Remember that PC to arrest for DWI is not proof beyond a reasonable doubt to convict for a DWI. The true strength or weakness of a DWI legal defense is in all the details. Talk to an attorney.