And yes, I did a search of the forum before posting.

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A subject of hot debate at my department is what constitutes operating a vehicle under various circumstances. The two most discussed, and one being the call that touched it off, are as follows:

1. An intoxicated subject is discovered passed out behind the wheel, in the roadway, vehicle not running, Subject has urintated on himself which has also wet the seat.

(Discussion: The arrest was made as a PI as the subject was not operating the vehicle and there were no witneses to the contrary. Now, being debtated a couple years later, the opinion is that it should have been a DWI because neither the driver or the vehicle were "magicked" to that location and the case could be made for DWI.)


2. An intoxicated subject is in a convenience store parking lot and observed attempting to start the vehicle but can't because it is in gear which prevents it.

(Disucssion: Again subject was arrested for PI. With the much more broad "definition" of operating we've found, the opinion shifted to DWI as the subject was attempting to drive/operate the vehicle. Now, there were witnesses and video, etc but barring having any of those, would you also agree DWI?)

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I guess the pervading questions are these:

(a) If a subject can constructively be placed as having driven a vehicle, how strong is this in court for a DWI case? If, by the time a subject is discovered, they are now standing outside the vehicle (but investigation puts them as the only person with the vehicle) OR the vehicle is shut off and no longer being "operated"... will the investigation or case hold much water?

(b) Just how far is the definition of operating able to go? For example, if a vehicle isn't running but someone has their foot on the brake pedal, are they operating the vehicle?


I know this will probably have as many varied opinions as possible but they are all welcome. All answers and thoughts are greatly appreciated in advance.

I've always thought you could infer that operation of the vehicle must have occurred prior to what the officer observed to get the vehicle to its current location. That would particularly be true if the vehicle is stopped in the road.

A tougher question as to whether a jury would be willing to draw the inference and whether an appellate court would drop their bias against DWI and accept the obvious evidence.

Only my opinion. No exercise of control in situation one. Great circumstantial case, but while enough for a jury, appellate courts having much less common sense would toss it.

Situation two: the driver was exercising control by playing drunkenly with the gear shift and ignition. Operating.

Having said all that, I won't have to try either case so the filing attorney was right regardless.

Didn't the court also say that "attempted DWI" is not an offense?

Also with the first guy there is perhaps a problem of when did he stop driving vs. when did his blood alcohol go above the limit. Maybe he was sober when he stopped operating... or something.