This situation occurs more than one might think. To be convicted of VTL 1192.2 (DWI based on BAC> .08) or VTL 1192.3 (DWI- common law), you do not necessarily have to be driving a motor vehicle. The statute states that one must be operating a motor vehicle. And there is a wide latitude given as to what defines operating a motor vehicle in the State of New York.
Essentially, if the motor vehicle is in the on position, the driver of a motor vehicle can still be charged with a DWI assuming there is reasonable suspicion for the stop of the stationary vehicle, and the police officer has probable cause to arrest the driver. For example, let’s say a motorist is driving on a parkway and decides to pull over to the side of the road to rest because they are tired.
If the officer decides to check the status of the vehicle because they are stopped on a public roadway, they may notice that the driver is not driving the car, however, it is certainly reasonable to conclude that the motorist will attempt to drive home themselves assuming there is not any designated driver in the car. If the standard field sobriety tests are conducted and the portable breath test (PBT) reveals the driver is intoxicated, the motorist can still be arrested for DWI even if they did not drive one inch in their vehicle.
The question comes down to whether it is reasonable to conclude that the motorist has the intention of driving the vehicle at a later time interval even if the vehicle is not being driven when the stop may have occurred. The determination of whether the motorist can be charged is very fact-specific.