As a former DWI prosecutor I knew that in order for you to be convicted of driving while impaired (DWI) in North Carolina under N.C.G.S. 20-138.1 the State must prove to the jury that you were “driving” the vehicle in question.
The question then becomes what does it mean to “drive” a vehicle?
1. Does that mean the car/truck/scooter must be moving at the time you were stopped by the police?
2. What if you were stopped already when the police found you?
3. What if you were completely parked in a parking spot minding your own business when the police came up to you?
These are all valid questions. Ones I hear everyday now as a DWI defense lawyer. The DWI law in NC says that someone who “drives any vehicle upon any highway, street, or any public vehicular area within this State” while either appreciably impaired or with a BAC of at least a 0.08 is guilty of DWI. N.C.G.S. 20-138.1.
The law in NC says that someone “drives” a vehicle when they are in actual physical control of the vehicle which is in motion or which has the engine running. This would include the situation where a person is in the driver’s seat of a non-moving car when the engine is running.
So…..to answer the questions above…..
No, the car doesn’t need to be in motion for the police to charge you with DWI. If the police think they have enough evidence to prove you WERE driving BEFORE they caught up with you that could be enough to convict you. In other words, if you were in the driver’s seat of the car after having crashed into a tree alongside the road by the time the police arrived the police may assume that you were the one who drove the car off the road even if they didn’t actually see you do it.
Similar to the last answer, just because you were already stopped doesn’t mean you can’t be convicted of a DWI. Just sitting in the driver’s seat of a parked car with the engine running is enough. Now, what happens when you are found by the police sitting in the driver’s seat but the car’s engine isn’t on. Well, like the last answer, if the police can show that you, in fact, were the driver of the car it won’t necessarily matter that the engine wasn’t running when they found you.
Once again, even if you were just sitting in the driver’s seat of a car minding your own business when the police arrived doesn’t mean you can’t be convicted of a DWI. I’ve seen lots of cases where the defendant was sitting in the driver’s seat of a car in the parking lot of a convenience store with the engine off when the police arrived to investigate a call of a drunk driver. If the police have evidence that you were the driver of the car when you arrived at the convenience store they can question you about it and investigate you for DWI.
So, at the end of the day, it doesn’t take a whole lot for a prosecutor to prove you were “driving” the vehicle. All the prosecutor really needs to show is that you were sitting in the driver’s seat of a parked car with the engine running, even if you weren’t the person who parked the car!
If you’ve been charged with DWI and have questions similar to these the best thing you can do is hire a former DWI prosecutor. As a former DWI prosecutor I know the answers to your questions and the inside legal knowledge to help you win your case. I’m available 24 hours a day/365 days a year to take your call. My number is (919) 886-7506.
The Law Office of Lucien Roughton, Jr., PLLC 