In North Carolina in order to be convicted of a DWI the first element the State must prove is that you were driving a vehicle on the highway, on the street, or any public vehicular place. In fact this is what N.C.G.S. 20-138.1 states. So if you were reading the statute you would probably assume that you must actually be driving the vehicle, right? Wrong.
Actually the North Carolina appeals courts have said the “driving” for purposes of the law includes actions that amount to operating a vehicle. Operating a vehicle has been described as being “in actual physical control of a vehicle which is in motion or what has the engine running.” State v. Fields, 335 S.E. 2d 69 (1985). This could include just simply putting the key in the ignition and turning the vehicle although you never moved the vehicle or intended to.
Weird, I know. It doesn’t really seem to fair to punish someone for DWI when he or she never actually drove the vehicle anywhere. I would hope in the interest of fairness the courts or legislature would consider changing this, however I do not see that happening soon. If you have been charged with a DWI but you were not driving the vehicle that does not mean all hope is lost. An experienced attorney can likely either plea your case down or get your case to a jury to have the charge dismissed or reduced.
