Every year New York DWI attorneys and DUI lawyers find themselves representing clients accused of drunk driving and Vehicle and Traffic Law 1192 crimes that are re-defined by new criminal statutes or legal decisions. For example, Aggravated DWI in New York State is a crime that enhances penalties and did not exist years ago. Further, while portable “brathalyzer” tests were often not admissible at trial years ago, many courts are allowing prosecutors from New York City and Westchester County to municipalities and jurisdictions in Western New York and Upstate to introduce the field test BAC results with proper foundation.
One of the areas of law that always seems to expand with renewed analysis by local, county and appellate courts concerns the “operation” or “operating” terminology in VTL 1192 arrests. First, courts often address whether one must be actually driving to be operating (one does not) and second, if a defendant is not seen operating the vehicle how prosecutors can establish a drunk driving or driving while intoxicated crime circumstantially. A case right on point, and a very recent appellate decision, People v. Shaffer, 943 NYS2d 672 [3rd Dept. 2012], examined these issues. In Shaffer, a State Trooper observed the defendant sitting on his motorcycle. Although the motorcycle was not running, the defendant was wearing a helmet and facing the wrong way down a one way street. Ultimately arresting the defendant for violating VTL 1192.2 and VTL 1192.3, the Appellate Court found that there was both probable cause to arrest the defendant and it was of nominal consequence that the officers did not actually observe the defendant driving or operating the bike.
Testimony at trial revealed, as mentioned above, that the defendant sat upon his motorcycle facing the wrong way, helmet on his head, kick stand up and keys in the ignition. Although the defendant’s motorcycle was not running, the defendant admitted to driving it moments before. More specifically, he stated he travelled about fifty yards down the one way road (the correct direct), realized he had gone the wrong way and turned around to figure things out. When taking into consideration that the officers observed the “standard” indicia of intoxication – watery and blood shot eyes, slurred speech and the smell of alcohol – along with the fact that the defendant was astride his motorcycle with the key in the ignition and kickstand up, admitted to driving and failed field sobriety tests, probable cause was certainly in place to arrest the defendant. The greater (or at least equally important) question was whether this evidence, if credible, was enough to prove the case beyond a reasonable doubt. Simply, the answer here was yes. Even without direct knowledge of operation, the circumstantial evidence was very strong and by itself can form the basis of a DWI or DUI conviction.
While the Appellate Court did not address the circumstantial evidence in great detail, there are some interesting things to think about. Would the outcome have been different if the defendant did not admit to riding the motorcycle? What if the key was not in the ignition or the defendant sat next to the bike? I have not seen the trial minutes, but did the prosecutor inquire as to whether the motorcycle was registered to the defendant, other people were around or the engine was throwing off any heat as if it had just been driven? All of this circumstantial evidence could be used to bolster or attack the DWI case in terms of “operation.”
I think about each and every time I draft a blog entry on New York DWI crimes and New York DUI laws, I state the same thing. VTL 1192 crimes are as potentially deadly as they are avoidable. Nobody likes to hear it from their mother or their criminal defense attorney, but the best defense to a DWI arrest is to just not drive while intoxicated. If, however, you are accused of DUI – whether it is based in fact and evidence, a jump to a conclusion or the product of an illegal stop by the police – you have a right to defense yourself and identify and implement the best defense. Educate yourself on the law, consult with your attorney and begin the defense process to protect your DMV driving privileges and otherwise clean criminal record.
To learn about New York Refusal Hearings, Hardship Hearings, DWI Felonies, DUI misdemeanors and the collateral consequences of a New York drunk driving arrest, follow any of the links to the general information page for New York DWI laws where you will find all relevant and pertinent content including other blog entries and reviews of specific statutes and procedures.
Established by two former Manhattan prosecutors who trained and served in the DWI Unit, Crotty Saland PC is a New York criminal defense firm representing clients in all DUI and intoxicated driving offenses throughout the New York City area.