Many people assume that just having your keys in the vehicle while being intoxicated is enough for an OWI charge. That is not true. In order to be convicted of an OWI the state must prove that you either “operated” your motor vehicle or you were driving. There is a difference, but both can result in a drunk driving charge.
Operating a Motor Vehicle – OWI
Operating a motor vehicle means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion. Although this does not mean the vehicle must be in motion, it does mean that just having your keys in the ignition is not always enough for an OWI conviction.
In Village of Cross Plains v. Haanstad, 2006 WI 16, the Supreme Court of Wisconsin held that the defendant did not “operate” a vehicle where the defendant was merely sitting in the driver’s seat of a parked car. In this case the engine was running. However, evidence was presented that showed the defendant was not the one who started the vehicle or left the engine running. There was no evidence that the defendant “physically manipulated or activated the controls necessary to put the vehicle in motion.”
Driving a Motor Vehicle – OWI
Driving a motor vehicle is pretty straight forward. It means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion. Unlike proving you were operating a motor vehicle when found sleeping in a vehicle, driving is pretty easy to prove. Especially if you were pulled over for any sort of traffic violation.
In cases where driving is easily proved, a good OWI attorney will need to examine the reason you were pulled over in the first place. If the officer did not have a valid or legal reason to pull you over, there is a good chance any and all evidence from that stop will be suppressed. Often you have the opportunity to question the officer at the administrative review hearing. This can be a window into your case. Whether you are charged with a first offense, a second offense or a third offense or greater, you need an aggressive criminal defense attorney to fight for you.
The time of operation or driving does matter in DUI case
If you were arrested after your car broke down or if you were found asleep in your vehicle, you may have a defense to your DUI charge. The law states that the alcohol concentration in a defendant’s breath or blood sample taken within three hours of operating a vehicle is evidence of the defendant’s alcohol concentration. If the prosecutor cannot prove that the alcohol test was taken within three hours of your alleged driving or operation they have a problem. The results may still be admissible, but the state must show sufficient support from expert testimony to give them relevancy. The less the police know about your time of driving and what you had to drink the better for your defense.