Possibly it could be considered operating. Keyless ignitions are fairly new so I'm not entirely certain, without doing some research, on how that factors in. You need a good attorney to assist you. I was able to change a DWI in a similar circumstance into an obstruction of a passageway.
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If you had control over the vehicle, and it was operational, it can be considered as a DWI.
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In Wisconsin, if they can prove you operated the vehicle while under the influence, they can convict you. This can mean that they prove that you drove there before the officer arrived on the scene even though parked when police showed up. Circumstantial evidence can be used for this as can your statements.
Often people think that because it isn’t a murder case, a drunk driving case is simple. Nothing could be further from the truth. These cases can be among the most complex a criminal defense lawyer handles. The government is willing to spend an incredible amount of money to convict you though. They will have expert witnesses available for consultation and trial.
That you have been charged or that some contraption says your alcohol level was at a certain level does not mean that you are guilty. It certainly does not mean that you can be proven guilty using competent, valid evidence.
Field sobriety “tests” are designed to give police a reason to arrest. You cannot “pass” them. The police will admit that almost a third of healthy young adults who take these tests without any alcohol will be judged to be “under the influence” – and that assumes they are properly administered!
After even a first drunk driving conviction, you may face employment discrimination. You will certainly be charged higher for insurance. Having such a conviction will also make you a target for drunk driving arrest in future interactions with police. You will automatically become a suspect.
You will want a lawyer who is familiar with field sobriety “tests,” perhaps one who is certified to administer these tests. You will want a lawyer familiar with the weaknesses of the contraptions that are used to report alcohol or drug levels. You want an experienced trial lawyer, used to cross-examining police officers. Police officers are practiced, experienced witnesses.
That is, you want an experienced drunk driving defense lawyer, whether you call the offense DUI, OWI, DWI, OUI, or drugged driving.
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I haven't looked into the caselaw into whether these facts are sufficient to meet the operating element of the statute. Typically it turns on whether the key is in the ignition (whether or not the engine is on). But I have a feeling the courts are going to say you were operating.
There are still a number of other ways to beat a DWI. They are very technical cases, so make sure you hire an attorney who handles them regularly. Also be aware that your first deadline expires 15 days from arrest, so hiring an attorney is time sensitive in these cases. Most of us offer free consultations. I would start calling around today.
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This is the case to seriously consider fighting. There is no certain, sure answer based on what you say in this question, so you need to hire a very experienced DWI attorney to assist you. The police and DA will pursue this case and, if its a Collin County case, you must either plead or fight the case, probably the fight will be a jury trial. You need top quality evaluation, advice and careful deliberation about what to do with this case.
In Texas they have to prove that you operated the vehicle - that you exerted some sort of personal effort to control the function of the vehicle.
In Texas the court will look at the "totality of the circumstances" in determining this factor. Was the engine hot to the touch and still "ticking"?Are there operating witnesses ? Did you admit to recently operating? Did anyone see when your car arrived at it's destination? These are the types of things the fact finder will consider in determining whether you operated.Operating is not defined in the penal code, and every case turns on it's own unique set of facts. As one court noted, and I will paraphrase, "one can operate a motor vehicle without driving, but one cannot drive without operating".I agree with Mr. Jones, the Keyless Ignition is a novel legal issue and I have not seen any cases reported involving this. it seems to me that possessing the keys is a passive act and not one wherein you exert effort. Good luck, and I hope this answer helps.
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This also depends on what county in which you were arrested. In some counties it can be more difficult to attain a not guilty verdict even if the prosecutor doesn't meet the burden of proof, beyond a reasonable doubt, regarding every element of the offense, during trial. Because you were parked, and the lights were on, I'm going to assume the officer stated he came by for what is called, "a community care-taking function." This means that he did not have to have reasonable suspicion of an offense, or probable cause of a traffic violation in order to detain you because he was coming over to make certain that everything was all right. This is going to make it more difficult for your attorney to win a motion to suppress the evidence. If I was the prosecutor I would argue that you were "operating" the motor vehicle since the lights were on and you were in the front seat. However it is difficult to operate a motor vehicle while one is asleep and the engine is turned off, and the prosecution will have the burden of proof. If you were stopped on the side of the road, it was because you had the good sense to cease operating the motor vehicle. The case law is extremely important when it comes to motions to suppress evidence and what happened before the officer came over can make a difference. During trial, it will be the jury not a judge, (should you so elect) who will control the outcome and the trial usually hinges more upon the facts of your case. It would be wise to seek legal counsel. Interview several attorneys. You should look for someone who will handle your ALR hearing and help you with an Occupational Driver's License, as well as consider whether or not you have a good suppression issue. The attorney should view the video of the arrest from all the police vehicles involved. He should also ask you if you preformed Field Sobriety Tests (FSTs) and which ones the officers administered. There are only three FSTs that are NTSA approved, even those are not necessarily reliable considering the point system with which they are graded. Other FSTs are commonly used if the officer has doubts as to whether to arrest the suspect. There will also be more questions and issues to be researched if you were given a breath or blood test.
I agree with Mr. Beaty, when, from much experience in these matters, he writes, that your case will likely come down to a trial by jury. A jury may be able to look at the facts and use common sense to determine whether you were operating the vehicle or not.
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