You cannot be charged with driving while intoxicated (DWI) if you are not actually driving, right?
As always, the answer is a bit more nuanced than it may initially seem: it depends.
To be charged with DWI, you need to have been “operating” a vehicle. What the inquiry comes down to, then, is whether you were “operating” at the time you’re discovered by police officers. As you can imagine, this is a highly fact-intensive inquiry that turns on the most nuanced factors.
“Operating:” What Does It Mean?
To be charged with a DWI, you must be “operating” your vehicle at the time you are found to be under the influence of alcohol, drugs, or another impairing substance. Operating is defined in the North Carolina statutes as “in actual physical control of a vehicle which is in motion or which has the engine running.” Thus, if a person is (1) in the driver’s seat and (2) the engine is running, even if the car is parked, there is strong evidence that the person was in fact “operating” and thus can be charged with DWI.
What If I Just Have the Engine on to Use the Heat?
If you have had too much to drink and realize you should not be driving, pulling over is the responsible thing to do. Unfortunately, if you remain in the driver’s seat and turn the car on to listen to the radio or turn on the A/C or heat, you are setting yourself up for a possible DWI charge. In making a charging decision, officers will consider factors like where your vehicle was parked, whether the engine is still warm, where in the vehicle you are sitting, and other factors that point to you having recently operated the vehicle.
What If I Am in a Parking Lot?
Again, remaining in a parking lot would be the responsible thing to do after you have had too much to drink. However, if the engine is running for any reason and you remain in the driver’s seat, the police could find reasonable grounds to charge you with DWI (depending, of course, on the specific circumstances).
What Should I Do?
As you can see, there is no clear-cut answer here: even if you are in a nonmoving vehicle, and even in your driveway (yes, there have been cases in which clients have been charged with DWI even while sitting in their own driveways!), you may still face a DWI charge. As such, never assume anything: if you are facing a charge or a potential charge, contact a criminal defense attorney to discuss the specifics of your case.