NY DWI: Why The Charge May Apply Even If You Weren’t Actually Driving

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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If that sounds odd to you, you’re not alone. One of the more peculiar rules in New York concerns the ability to be arrested for drunk driving even if you weren’t actually driving the car. Simply getting into a car when over the legal blood alcohol limit may be enough for an arrest. Our New York legal expert explains the controversy surrounding the law.

New York DWI Attorney Elliot Schlissel

Having practiced in the criminal defense area for over 30 years, New York attorney Elliot Schlissel, whose practice represents clients from New York, Suffolk, Nassau and surrounding counties, has seen it all. However, he says that New York’s unusual rule concerning a DWI charge without actually driving is something which many do not fully understand. He explained:

If a person is sitting in the driver’s seat when the car isn’t started and the key isn’t in the ignition, you can still be charged with DWI. It is a very controversial situation. In many areas of New York, police stake out certain bars, pubs or other establishments frequented by young people. We’re talking about individuals ages 18 to say 28, and they watch them walk back to their car. They watch their gait and as they get into their car they stop them and arrest them.

There has been a lot of litigation as to whether the key would have to be in the ignition and the car would have to be turned on to charge them with Driving While Intoxicated. Some courts have held that as soon as that individual, with the key on them, sits in the driver’s seat, they can be charged with Driving While Intoxicated.

Key-less ignitions

Just to complicate the issue a bit more are newer cars which use key-less ignition systems’ meaning that you can get into the car, have the key in your purse or your pocket, just touch a button and the car will start. How does that affect the matter? Schlissel told us that while this is a very controversial area in New York, he’s represented individuals who have been in their car after they had a few drinks, have never had the key touch the ignition and have been charged with Driving While Intoxicated. He explained:

If the car is started and the driver simply wanted to put the heat on and sleep it off, police would have sufficient justification to roust them from the back seat and charge them with DWI’ the presumption being that the car couldn’t have gotten to where it was without being driven. So, my recommendation is to avoid going into your car if you had too much to drink.

The consequences of a New York drunk driving charge can be severe. If you’re facing such a charge, contact an experienced New York DWI lawyer for a free evaluation of your situation. You may have more options than you realize.

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