It is common to describe all alcohol and/or drug related driving offenses as Driving While Intoxicated (DWI). However, under New York State law, you need not be "driving" or "intoxicated" to be charged with the offense commonly referred to as DWI.
Operation of a Vehicle
Under New York law, a motorist must not "operate" a vehicle while under the influence of alcohol or drugs. The term "operate" is more broad than the term "drive." Yes, to drive a vehicle is to operate it; however, much less is needed to prove operation. Specifically, a motorist operates a vehicle when he or she is in the driver's seat for the purpose of placing the vehicle in motion. The vehicle need not be in motion and the engine need not be running. In fact, several courts have determined that a motorist operates a vehicle merely by placing the key in the ignition. In extreme cases, a sleeping motorist in a vehicle with the key in the ignition can be deemed to be "operating" a vehicle.
Under the Influence
Under New York law, a motorist must not operate a vehicle while "under the influence" of alcohol or drugs. The phrase "under the influence" is more broad than the term "intoxicated." Yes, to drive while intoxicated is to drive under the influence; however, much less is needed to prove a motorist is under the influence. Specifically, a motorist may not lawfully operate a motor vehicle when that person’s consumption of alcohol or a drug has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver. A blood, breath or urine test is not necessary; in that, a police officer's observations (i.e. odor of alcohol, speech impairment, blood shot/glassy eyes and poor balance) may be enough to establish a motorist is under the influence.
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