Asleep in car in private lot

[dubba61]

What is the name of your state (only U.S. law)? New York

I was arrested for Aggravated DWI in NYS almost two weeks ago. I drank in a private parking lot inside my car. I disposed of the beer cans in a trash receptacle, returned to my car, then laid down and went to sleep. I had made the decision to sleep there several hours prior, as I knew where my drinking would lead me. My car was running, unfortunately, as I had the heat and radio on.

Some time later, police woke me up with a rap on the window. They informed me that they had received a 911 call reporting someone driving erratically and vomiting in the parking lot. I was given a field sobriety test, including a breathalyzer, and was arrested. The arresting officers later admitted that there was no vomit on the scene nor on my person, and my car was parked straight in a parking spot, which was surprising to them if I had been driving erratically with a 0.26 BAC.

Do I have any legal standing here? I now understand that the law considers it "operating" the vehicle if the keys are in the ignition, even though I was lying down across the front seat. But if I can prove that I was in that spot for several hours, what can be done about that 911 call? Obviously, it was not me who was driving erratically and vomiting.

Thank you.

[xylene]

The 911 call is irrelevant.

Get the best lawyer you can.

[PhlawedPharmacy]

Truth is, if you were sleeping on the hood with the keys in your pocket you'd be looking at fairly the same thing anyway. They don't want drunk people anywhere near cars and the laws are written pretty airtight towards that end.

[Ohiogal]

Originally Posted by PhlawedPharmacy

Truth is, if you were sleeping on the hood with the keys in your pocket you'd be looking at fairly the same thing anyway. They don't want drunk people anywhere near cars and the laws are written pretty airtight towards that end.

I don't think that is quite close enough to be in control of a motor vehicle. He would be loitering however.

[dubba61]

Thank you all for the info.

But if my lawyer and I decide to go to trial (this decision is still a month away), couldn't the 911 call be relevant to jurors if I can prove with video surveillance and/or store receipts that I was in that parking lot for a number of hours, and not driving around town eratically as the call stated? Just looking for anything I can grab ahold of.

Thanks.

[seniorjudge]

Originally Posted by dubba61

Thank you all for the info.

But if my lawyer and I decide to go to trial (this decision is still a month away), couldn't the 911 call be relevant to jurors if I can prove with video surveillance and/or store receipts that I was in that parking lot for a number of hours, and not driving around town eratically as the call stated? Just looking for anything I can grab ahold of.

Thanks.

After your lawyer gets discovery, then you can make an informed decision whether to go to trial.

[You Are Guilty]

I fail to see how the 911 call being accurate or not is relevant. You're not being charged with driving erratically through the parking lot, you've got a DWI which just requires you to be in the car, drunk, with the motor running or with the keys on you. Seems like that part isn't at issue.

Unless the "private property" you were on was your own, or truly "private" (i.e. no public access whatsoever), I can't think of any "loopholes" that might apply here.

[dubba61]

OK, I understand. Thank you. I guess I'm just grasping for anything at this point, but the law is black and white.

But because this is my first ever arrest, and I entered an Intensive Outpatient Program for alcohol abuse within a week of my arrest, combined with the circumstances of my DWI mentioned above, do you think there is any chance that the judge/DA will show me any leniency as far as sentencing and/or a plea deal? I understand that this process is probably standardized within certain limits as per NYS law.

Thanks again.

[xylene]

But, don't do any heroics expecting them to be a magic bullet.

Sleeping in car DWI cases are not political winners.

If you have a good lawyer, you have a chance.

[tranquility]

1. The 911 call will provide the police a reason to be there and reasonable suspicion when they see a man, in a car as described by a witness, of crazy driving--possible DUI, giving them rights to investigate further.

2. On that investigation they see a drunk man in a car which matches the description in the location where a crazy driving--possible DUI was. They feel this is probable cause for arresting DUI because the keys were in the ignition and the car was running, but the alleged "driver" was asleep.

If you notice, you will find the second set of facts far more important to finding a person has committed a crime. The first part involves the 4th amendment and the second are the elements of the crime.

There was a 911 call the police, as their duty, followed up on. The source's information was coorborated by the on the scene facts. Does everyone agree, in the totality of the circumstances, the police would be acting reasonably if they investigate a running automobile with a man "asleep" behind the wheel at the scene of a cooroborated reporting of a crime involving DUI?

Yes, I think they would. Period. OK. Fine. The OP doesn't want the police to intrude on his privacy. I mean, he planned on parking in the lot and drink until he can't drive but leave the car on for the radio and the heater.

LET US DISSAPPER THE 911 CALL. What then? Hmmm...Well if the police are just driving around and happened to SEE a person sleeping in a running automobile in a public parking lot, would they investigate? Would that be reasonable? If so, we again generate #2--and you are properly charged for DUI. Not for what you did, but for what you are doing.

Who cares if you were the guy doing donuts in the parking lot or whatever? Say you got a film and witnesses to tell everything just as it happened and things were just as you say.

Aren't you still guilty of DUI? Don't those facts fulfill the elements of the crime? The real rule is we don't want stupid people in control of a big vehicle which can do real damage and injury without careful operation. Some people get stupid occasionally and have to much to drink and drive home. And, while I am grateful you chose to park rather then ride, sleeping in a running car because you were drunk and thought that would be a good thing, makes me think "occasionally" doesn't seem to fit.

[dubba61]

I appreciate the old information and condescending attitude. But you were not able to answer my question. Please read the most recent question before wasting your time with such a response.

I am ashamed of what I have done and am guilty of DWI. I am not bitter about the circumstances surrounding my arrest, although you presume to know that I do "stupid" things like this regularly. I am taking steps to help myself and would only like an idea of what I can expect as a resolution to my case. So please, I do not need another patronizing response from you. Save them for other threads. I assume you wait for new ones to pop up throughout your day.

However, I do appreciate the advice of experienced members with true expertise in the law.

Thank you.

[Alex23]

How can you afford the gas for sleeping in your car with it idling?

[tranquility]

No one can guess what a judge will do. If he believes you were driving like a crazy person he will treat you differently than if he thought your story was true. In either case, because of the level of risk and *intent* to do illegal things, I suspect there will be no leniency as based on the facts of the crime.

Better is the entry into intensive program to treat the drinking problem.

[Peligroso27]

I am surprised that no one has mentioned how flawed his account is likely to be with a .26 BAC that night. This guy was two sheets to the wind and I for one do not believe he can properly account for actions.

There will be no leniency in this case.

[seniorjudge]

Originally Posted by Alex23

How can you afford the gas for sleeping in your car with it idling?

He's works for AIG.