SURPRISINGLY the answer is YES!
North Carolina law does NOT require a car to be in motion in order to be charged with a DWI. Instead, the statute says one can be charged with a DWI if they are in operation of the motor vehicle.
Operation is simply defined as being in a position to control the vehicle while the ignition is running or on. This means that if you are in the driver’s seat and the vehicle is running, then you can be found to be operating the vehicle and be charged with a DWI.
Below are some of the most common situations we see where operation becomes an issue:
I pulled over because I knew I shouldn’t be driving.
Oftentimes, people begin the process of trying to drive home and realize that they shouldn’t be driving. They pull off the road or into a parking lot, and wait for a friend to come get them. If a police officer pulls up and makes contact with them, could they be charged with a DWI?
Yes. First, the officer will have to determine if they are operating the vehicle. If they are in the driver seat and the engine is running, even if they don’t intend to keep driving anywhere, they can be charged with a DWI. The officer will not have to prove that they intended to move the vehicle anymore in order to prove operation.
I pulled over my vehicle to sleep to off.
Another common occurrence that gives rise to the charge of DWI is when someone is driving a long distance or is driving very late at night and they decide to pull off the road and take a nap. Often this person will pull into a parking lot or other safe location in order to grab some sleep before continuing on, while leaving the car running to use the air conditioning or heat. Could they be charged with a DWI?
Yes. Again, if the engine is running and the person is in the driver’s seat, they can be charged with a DWI. You do not have to be awake or actively controlling the vehicle to be operating the vehicle. The police only need to prove that you were in the driver’s seat and the engine was running in order to prove operation.
I got in my car to sober up before driving.
What if you never drove the vehicle anywhere. Instead you left the bar, knew you shouldn’t be driving and just hopped in to sober up before driving off. You can still be charged with a DWI.
Similar to the situation above, the police don’t have to actually prove that you were actively driving the vehicle in motion anywhere. Instead they only have to prove that you were operating the vehicle.
In order to prove operation, the police would have to prove is that you were in a position to control the vehicle, i.e. the driver’s seat, and that the vehicle was running. They do not need to prove that you intended to actively drive the vehicle.
I walked outside to talk on the phone and got in my car.
Finally, a bar or restaurant can be a noisy place. If you step outside to make a call and hop in your car and turn the engine on because its hot outside or you wanted to use your vehicle phone charger, you could be charged with a DWI.
Again, in situations such as this the police will look to prove operation instead of the active driving of the vehicle. The police will only have to prove that you were operating the vehicle, they do not have to prove that you intended to actively drive the vehicle or how long you were in the vehicle. Even a brief moment to make a phone call could be enough to prove that you were in operation of the vehicle.
What does this mean for me?
First, it is important to know that oftentimes in DWI cases, the police rely on your admissions to make their case. They will ask you questions designed to get the answers they need, not making any admissions is always the safest practice.
Second, it means you should be extra careful when you are using your vehicle after you have been drinking. Being aware of where you sit and what you do can be the difference between a conversation with a police officer and being charged with a DWI.
I was in the driver’s seat of my vehicle and it was running, am I automatically guilty?
NO. There are several other key factors that could play a role in whether or not you are found guilty in court. It is vitally important to speak to a skilled and experienced attorney as soon as possible.
If you have questions about operation of a motor vehicle, or have been charged with a DWI contact our Criminal Law Partner Mark S. Jetton Jr. today.