Here is an interesting Driving While Intoxicated case…
While there is no question that Driving While Intoxicated in Suffolk and Nassau counties is a significant safety issue which law enforcement needs to deal with, what I have seen at times is an over-aggressiveness and lack of judgment leading to unnecessary arrests.
A perfect example of this is a case I just tried where my client was arrested for sleeping behind the wheel of his car while the engine was running. The police officer received a 911 call about someone sleeping or passed out in a running car. The officer responded to the scene to find exactly that: my client sleeping behind the wheel, engine running and a passenger in the backseat also sleeping. The car was in a residential neighborhood.
At a pre-trial hearing, the officer claimed that the car was parked in the middle of the street and not at the curb. The officer approached my client, turned off the engine and woke him. The police officer immediately asked him to get out of the car because he smelled alcohol. He proceeded to put my client through a battery of sobriety tests and then placed him under arrest.
What the officer failed to do is establish how my client arrived at that location: did he drive the car himself or did someone else? He also failed to find out when it was that the car arrived at that location. Despite this lack of information, the officer still makes an arrest.
This case deals with a misunderstanding by many in law enforcement (and the District Attorney’s Office for that matter) of the meaning of the legal term “operate”. “Operate”, in the legal sense, means more than driving. The law broadens the term to also include sitting behind the wheel with the engine running with the purpose of driving. It is this last requirement that many police officers fail to appreciate.
In the example discussed above, the officer never witnessed my client driving the car or doing anything showing intent to drive the car. He also never speaks to a witness who observed my client drive the car. Nor did my client admit to operating the vehicle at any time. Without any further evidence, there is not, as a matter of law, enough evidence to convict my client.
So why was my client arrested? I believe it is a failure or unwillingness of the officer to use his discretion and not make an arrest. Sure he has his suspicion that my client drove the car at some time that day. But without further proof, the community would have been well served if the officer had simply ordered my client to exit the vehicle and be on his way. Unfortunately, too many officers find it acceptable to arrest those who are intoxicated and sitting in a car when they are actually not committing a crime.
It is cases like this one which underscore how imperative it is for those arrested for Driving While Intoxicated to hire competent counsel who are prepared to force the District Attorney’s Office to prove cases given to them by police officers whose interests are not always to arrest the guilty.
You can reach attorney Ira Weissman for a free consultation at (631) 979-7777