There are three main elements the prosecution must prove in a New York Driving While Intoxicated case; (1) Intoxication; (2) Operation; and (3) Location. In other words, the prosecution must prove that the defendant was intoxicated while operating a motor vehicle in or upon a location where the NY DWI statutes apply. White Plains defense attorney John Campbell has attacked the element of operation in numerous cases to his clients’ benefit. These cases often involve a person found sleeping in the driver’s seat or found outside of the car when the police arrive.
These cases are very fact specific. When the person is found sleeping in the driver’s seat, the main question is where was the car? Does the location of the car indicate the driver was passed-out. For example, generally, a driver found “sleeping” behind the wheel of a running motor vehicle in the left turn lane would be described by the police officer as “passed out”. On the other hand, does the vehicle’s location indicate the driver had no intention of driving. A person found sleeping in the driver’s seat of a vehicle found in a train station parking lot, properly parked, with the engine running for heat or air conditioning depending on the weather might have returned from a night of drinking in the City and, knowing he or she had several drinks made the correct decision and was “sleeping it off” or waiting for a ride.
A 2010 Driving While Intoxicated trail Mr. Campbell won in the Greenburgh Town Court provides an excellent example of a case where the prosecution could not prove operation. The police alleged they found Campbell’s client asleep, behind the wheel, in his running vehicle. However, while cross-examining the officers, Mr. Campbell established the defendant lived in a co-op building and that his car was parked perfectly in his assigned parking spot. Furthermore, the officers admitted the defendant had reclined the seat indicating he did not intend to move the vehicle.
Furthermore, Campbell established that both officers were outright lying, committing perjury, on a “key” a issue. Both Officers testified on direct examination that they approached the defendant’s vehicle on the driver’s side. Both officers also testified on direct that the “keys were in the ignition.” On cross-examination Campbell questioned both officers about their approach and confirmed that both officers approached defendant’s vehicle on the driver’s side. Campbell also questioned both officers about the alleged keys in the ignition asking both officers if they were sure that the keys were in the ignition. Both officers maintained that the “keys were in the ignition.” Therefore, both officers testified under oath that they approached defendant’s vehicle on the driver’s side and they both testified under oath that the keys were in the ignition.
Knowing that his client’s vehicle didn’t use a “key in the ignition” but instead was equipped with a key less, push button start system, Campbell knew both officers were lying. Campbell gave the officers numerous opportunities on cross-examination to either (1) correct their perjury; or (2) continue to bury themselves by lying. Both officers chose the latter; they both continued to testify that the keys were in the ignition.
Mr. Campbell had his client’s girlfriend testify. She testified that she had been driving for over forty years and had driven the defendant’s car on a regular basis. She testified that the defendant’s vehicle did not utilize any keys to start it and that there are no “keys in the ignition” to be seen as the officers testified. She further testified that the defendant’s vehicle was a push button start and that there were no keys hanging from any ignition as there are in cars with more common starting systems. The defendant’s vehicle was a BMW and, like many high end cars produced today, it utilized a key less, push button start. It was therefore, impossible to see keys in the ignition because there were no keys in the ignition. The officers therefore, lied when they testified that they observed the keys in the ignition. And, when given several opportunities to correct their testimony, they nevertheless continued to perjure themselves and testify that the “keys were in the ignition.”
Mr. Campbell argued two theories. First he argued that none of the officer’s testimony should be credited because they were both caught lying. Second, argued Campbell, the prosecution did not prove his client operated the vehicle which is an element of DWI under VTL 1192(2) or 1192(3). Mr. Campbell’s client was found not guilty in a case that was a complete and utter waste of resources.
For more information feel free to contact attorney John Campbell at 914-837-1800 or email Mr. Campbell using the contact form on this page.
THE LAW OFFICE OF JOHN CAMPBELL
188 E. Post Road – Suite 300
White Plains, NY 10601