What are my rights if I was drinking in my car but had no keys?

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What are my rights if I was drinking in my car but had no keys?

Asked on February 15, 2013 under Criminal Law, New York

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

If you had no keys and no ability to operate the vehicle, then you can sit and drink in the car as long as it does not constitute a violation of a local ordinance regarding public consumption of alcohol  or you are not publicly intoxicated.  New York does have "open container" laws which prohibit open containers of alcohol in vehicles (running or stationary) located on a public highway-- so if you are sitting at a location other than a public highway, you would not be in violation of your state's open container laws. 

Under the limited facts you describe, the police might be tempted to arrest you for DUI, but a DUI charge requires more proof than a person merely sitting in a car.  There must be some proof that you had just operated or were operating the vehicle.  Operation is not limited to driving.  It can include anything that would potentially set the vehicle in movement (like just turning on the engine).  Without the keys, this was not likely to happen in your situation.  If you were "hot-wiring" the car, then maybe they could meet their burden of proof to support a conviction. 

If you are concerned that you are being charged incorrectly, then you should consult with a criminal defense attorney to help you resolve the matter with the prosecutor, or a jury if need be.


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