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Understanding “Physical Control” in the State of New York

On Behalf of | Apr 12, 2018 | Criminal Law

Driving while intoxicated, or DWI, makes it illegal to operate a motor vehicle while intoxicated. To be guilty of DWI, the defendant must not only be intoxicated by alcohol, he or she must also be in physical control of the motor vehicle. Physical control of the vehicle is easily proven in cases where the defendant is stopped by a police officer while actually driving the motor vehicle. However, physical control becomes more complicated when the defendant was not observed operating the motor vehicle. Most commonly, this issue arises when the defendant is found asleep behind the wheel of a motor vehicle.

The State of New York has defined “physical control of a motor vehicle.”


In the State of New York, the prosecution is required to prove beyond a reasonable doubt that the defendant was in physical control of the motor vehicle when he or she was arrested. In cases where the defendant was not driving, the jury considers a number of factors in evaluating the totality of the circumstances.

The location of the driver in the vehicle is considered. In general, the easier it would be for the defendant to operate the vehicle, the more likely physical control will be found. For example, a defendant in the driver’s seat is more likely to be found in physical control than a defendant found in the back seat of the vehicle.

The location of the car is a factor. If the vehicle is parked in a driveway a better argument can be made for lack of physical control than when the vehicle is found parked in the middle of a road.

The location of the car keys is a consideration. If the defendant does not have the car keys, it is more difficult for the prosecution to argue the accused was in physical control of the vehicle. However, if the keys are found in the ignition, it is much easier to argue physical control by the defendant.

Sometimes people recognize they shouldn’t be driving, and want to sleep in the car, but it’s cold out so they start the car and put the heater on. If the engine is running at the time of the arrest, this can inform the trier of fact. Depending on the location of the defendant in the vehicle, it is much easier for the prosecution to argue the defendant is in physical control if the vehicle’s engine is running.

When determining physical control, none of these factors are determinative. Instead, the factors are weighed together.


In cases where the defendant is not arrested following observed driving conduct, the defendant may still be guilty of DWI. However, the jury reviews the totality of circumstances when making a determination of whether the accused was in control of the vehicle, and thus “operating” it even if the vehicle wasn’t moving. Because the facts matter, and because a trial may be warranted in a DWI case where “physical control” is disputed, you must have a lawyer well versed in criminal lawContact the Law Firm of Frost & Kavanaugh. We have over 45 years of combined trial experience. We look forward to discussing the facts of your DWI case with you.