Driving While Intoxicated (DWI) Without Actually Driving

By Benjamin Wolf

August 10, 2009

Each state has its own Driving Under the Influence (DUI) or Driving While Intoxicated (”DWI”) statute, each of which may define the elements of the crime differently. For example, in New York, pursuant to the Vehicle and Traffic Law, one may be convicted of a DWI, a very serious criminal offense, if he “operate[s] a motor vehicle” while legally intoxicated. The question is: What does it mean to “operate a motor vehicle”? Does merely turning on the engine violate the statute? Can you be arrested for walking toward your car? What if you sit in the car with the keys in your pocket?

Driving While Intoxicated

In a recent Connecticut case, People v. Cyr, Michael Cyr, while intoxicated, started his car using a remote starter and then sat down in the car, with the keys in his pocket, to go to sleep. The Connecticut court upheld Cyr’s conviction explaining that under Connecticut law, “[t]he act of inserting the key into the ignition and the act of turning the key within the ignition are preliminary to starting the vehicle’s motor. Each act, in sequence with other steps, will set in motion the motive power of the vehicle…. Each act therefore constitutes operation of the vehicle….”

How does this rule compare to the rule in New York?

In New York, if one is drunk while sitting in his car, and it is reasonable to infer that he or she has just driven, or is probably about to drive, the person can be convicted of a DWI. In People v. Membrino, the court stated the following rule for New York DWI convictions: Operating a motor vehicle “includes the act of [using] the mechanism of the automobile for the purpose of putting the automobile in motion even though [the vehicle does not move].” (Emphasis added.)

The court in Membrino further cited a Court of Appeals opinion stating that “An established line of authority in New York and elsewhere holds that … operation of the vehicle is established on proof that the defendant was merely behind the wheel with the engine running without need for proof that defendant was observed driving the car, i.e., operating it so as to put it in motion.” (Emphasis added.)

Thus, in New York, if the police can reasonably infer that one is about to drive intoxicated, a person may be convicted of a DWI. In the case of People v. Marriott, the defendant was observed twice by police in his car, the first time with the engine off and the second time with the engine on. The court held that since it was reasonable to infer that Marriott was about to dive, the act of sitting in the car with the engine on constituted “operating a motor vehicle” while intoxicated.

In Connecticut, the mere act of sitting in a car while drunk is enough to violate the statue, but New York is slightly more lenient. The Court in O’Connor noted that “[w]here there exists a logical, credible explanation such an inference can be defeated [because] the definition of operation cannot so alter its ordinary meaning as to create a new crime not intended by the legislature.”

The defendent has the burden of rebutting the presumption that he was about to drive his car, and specific facts must be garnered showing a reasonable explanation why the defendant was in his car.

As the blog A Public Defender points out, a person may just be sitting in his car with the engine on so that he has a warm place in the winter to sleep off whatever he drank. In New York though, a defendant must prove the existence of such a reasonable, alternative explanation for the their presence in the car in order to avoid a DWI conviction.

Benjamin Wolf is a Law Clerk at The Law Offices of Elliot Schlissel, a multi-service law firm serving clients in the five boroughs of New York City, as well as Nassau and Suffolk counties.


New York Vehicle and Traffic Law § 1192.

State  v. Cyr, 967 A.2d 32 (Conn. 2009).

People v. Membrino, 181 Misc.2d. 796, 799 (NYC Crim. Ct. 1999).

People v. O’Connor, 159 Misc. 2d 1072 (Nassau Crim. Ct. 1994).

People v. Marriott, 37 A.D.2d 868 (3d Dept. 1971).

Gideon, “Look Ma, No Hands Intent,” A Public Defender blog (March 24, 2009).