After an evening spent drinking, when the bar closes and it is time to leave, your options are limited. You can call an Uber, Lyft, or taxi, but maybe you are locked out of the application and cannot remember your password. You can call a friend or relative, but you might not want to disturb them at a late hour. Instead, you decide there is a third option. You choose sleeping in your car as a way to avoid disturbing loved ones or driving unsafely. However, sleeping in a parked car can still result in being arrested for driving while intoxicated (DWI). If you have been arrested for DWI in Middletown or elsewhere in New York, whether due to sleeping in your car or other reasons, a skilled DUI/DWI attorney with the Law Office of Benjamin Greenwald may be able to assist with your defense. Call (845) 567-4820 to schedule a consultation to review your case and discuss your legal options.
What Are the Different Types of DWI in New York?
Driving under the influence (DUI), driving while intoxicated, or drunk driving are all terms for the same thing. Legally, there are several types of DWI that New York law enforcement can arrest a driver for, depending on the type of intoxicant, the amount of intoxicant, how many times the driver has been arrested in the past, and the driver’s age.
Types of DWI
There are seven different DWI charges an individual can be charged with, according to the New York Department of Motor Vehicles. These charges are:
- DWI: The individual’s blood alcohol content (BAC) is .08% or higher or other evidence of intoxication. Commercial motor vehicle drivers are held to a higher standard and can be charged with DWI for a BAC of .04% or higher or there are other signs of intoxication.
- Aggravated DWI (AGG DWI): The driver has a BAC of .18% or more.
- Driving While Ability Impaired by Alcohol (DWAI/Alcohol): The driver has a BAC between .05% and .07% or other signs of being impaired. Note that this BAC is below the legal limit, but still results in arrest.
- DWAI/Drug: The driver is impaired by a single drug other than alcohol.
- DWAI/Combination: The driver is impaired by a combination of two or more drugs or drugs and alcohol.
- Chemical Test Refused: The driver refused to take a chemical blood, breath, or urine test.
- Zero Tolerance Law: A driver under the age of 21 with .02% to .07% BAC.
For any of these charges, the driver may still be arrested for DWI while sleeping in a parked car.
What Is Other Evidence of Intoxication?
Many of the charges mention other evidence of intoxication. Somearrests, such as DWAI/Drug rely solely on other evidence of intoxication as without alcohol, there is no BAC to indicate the individual is impaired. Therefore, at the time of arrest, the law enforcement officer may rely on this other evidence of intoxication.
Evidence of intoxication may include things like swerving, tailgating, abrupt braking or acceleration or constantly accelerating and decelerating for no reason, driving at slow speeds, driving through red lights or stop signs, driving without headlights, or breaking other traffic laws. In cases where the individual is not driving, such as when sleeping in a parked car, the Middletown law enforcement officer may engage with the driver and notice signs such as slurred speech, bloodshot eyes, an odor of alcohol, swaying while standing, inability to walk straight, stumbling, failed field sobriety tests, or poor motor skills. The officer may also notice other evidence such as empty alcohol containers, open and partially empty alcohol containers, or drug paraphernalia in the vehicle.
What Are the Penalties for DWI in New York?
New York penalizes DWIs with a loss of driving privileges, fines, and possibly jail time. The amount of each of those penalties depends on the exact charge, and whether it is a first, second, or subsequent offense. With each subsequent offense for the same charge, the penalties increase.
DWI, DWAI/Drug, or DWAI/Combination Conviction
A first DWI or DWAI/Drug conviction is punishable by a $500 to $1,000 fine, one year in jail, and the individual’s driver’s license being revoked for at least six months. A second conviction occurring within 10 years of the first will have fines of $1,000 to $5,000, four years in jail, and their license revoked for at least 12 months.
DWAI Conviction
A first DWAI conviction is punishable by 15 days in jail, a 90-day license suspension, and fines ranging from $300 to $500. A second conviction occurring within five years of the first may result in 30 days in jail, license revocation of at least six months, and fines of $500 to $750.
Aggravated DWI Conviction
The initial AGG DWI conviction can be punished with a fine of $1,000 to $2,500, a year in jail, and the individual’s license being revoked for at least one year. A second AGG DWI taking place within 10 years of the first can result in $1,000 to $5,000 fines, a prison term of up to four years, and revoking their license for at least a year and a half.
Difference Between Operating and Driving a Motor Vehicle and Why Sleeping in a Parked Car Can Get You Arrested for DWI
NY Veh & Traf L §1192 states that no person shall operate a motor vehicle while impaired. The use of the word “operate” is key to why sleeping in a parked car can still result in someone being arrested for DWI. If you are facing DWI charges, the Law Office of Benjamin Greenwald may be able to help you create a defense that gets the charges reduced or dropped.
Operate vs. Drive
Many people have mistakenly understood the law to mean that no one should drive a motor vehicle while impaired. When people think of driving, they think of being on the road, actually driving the vehicle. While this will certainly result in a DWI charge if law enforcement catches someone doing so, the way the law is written opens individuals to being arrested for DWI even when they are not driving, such as sleeping in a parked car.
While driving indicates actually moving the vehicle, operating does not. Operate is a rather vague term that allows much room for interpretation. Operating can be as simple as putting the key in the ignition, turning the car on for heat, or listening to the radio. While turning on the radio in a parked car is not a danger to others, the word operate allows law enforcement to arrest the individual for DWI if they do so. While the intent behind this law is to protect other drivers, it also allows drivers to be arrested much more easily, even if they do not have any actual intention of driving.
Other Things That May Be Considered Operating a Motor Vehicle
Putting the key in the ignition or turning on the radio or heat are not the only things that may be considered when operating a motor vehicle. Law enforcement may determine that someone is operating or intending to operate a motor vehicle if the driver is behind the wheel, with the keys in the ignition, the keys within easy reach, or sleeping with the keys close by or in the ignition
If law enforcement watches a driver approach their vehicle alone with keys in hand or sees the driver turn on the car while under the influence, they can also arrest the driver. In both of these cases, the driver’s actions would give the law enforcement officer reasonable cause to believe that the driver intended to drive.
How Can You Avoid Being Arrested for DWI While Sleeping in a Parked Car?
If a driver has had a few drinks and wants to be responsible by not driving and instead sleeping in a parked car, they are taking a risk that they may be arrested for DWI. There are some things that a driver can do to try to reduce that risk, but it is important to recognize that these tips do not guarantee that the driver will not be arrested.
If a driver is going to sleep in their car while under the influence, they should:
- Not move the vehicle at all: If the driver is sleeping in their car at the bar rather than miles away, they are less likely to be arrested for DWI. The driver should not move the vehicle at all, not even to another parking space.
- Sleep in a non-driving seat: If law enforcement finds the driver asleep behind the wheel, they may assume the driver was driving and pulled over to nap, or intended to drive but fell asleep first. Instead, drivers should sleep in the passenger or back seat to indicate that they had no intention of driving.
- Do not hold the keys: Keys on the driver’s person or close by can be used to prove an intention to drive. Instead, if a driver intends to sleep in their parked car, they should leave the keys with the bartender if possible. If not, they should place the keys in the trunk, glove box, purse, or other location as far from their person as possible to indicate the lack of intention to drive. If the keys are in a purse, place the purse as far away as possible.
- Keep the car turned off: A warm engine, hood, or tires can indicate the car was recently driven. Turning the car on for the radio, heat, or air conditioning can heat up the hood and engine. Do not turn the car on even for just a few minutes, and do not sleep in a recently driven vehicle.
- Make sure the car is parked legally: Make sure the vehicle is fully and appropriately parked in a legal parking space with unexpired tags so it does not draw extra attention.
How a DUI/DWI Attorney Can Assist You If You Are Facing DWI Charges
If you have had too much to drive, sleeping it off in your car is a responsible way to avoid drunk driving. However, it does not guarantee that you will not be arrested for DWI. Depending on the circumstances, a law enforcement officer may still be able to arrest you. If you are facing DWI charges, whether because of sleeping in a parked car or other reasons, an attorney may be able to help you build a defense, gather evidence on your behalf, or negotiate with the prosecutor for reduced charges or lighter penalties. Speak with an experienced New York DUI/DWI attorney at the Law Office of Benjamin Greenwald by calling (845) 567-4820. We are happy to schedule a consultation to review your case and explain how we may be able to assist you.
