James K. Minick

James K. Minick

To be proven guilty of a DWI in North Carolina, under N.C. Gen. Stat. § 20-138.1, the State must show all the elements of the charge, including the fact that the Defendant was driving. Although this seems pretty straight forward, an individual can be guilty of driving when the car is not in motion, in park, or if the individual is not currently in the driver’s seat.

Definition of a Driver in NC

Under N.C. Gen. Stat. § 20-4.01(7) and (25), a driver/operator is defined as a person in actual physical control of a vehicle which is in motion or which has the engine running. The terms “operator” and “driver” are interchangeable. From this definition, the various potential situations for an individual to be charged for DWI start to become more clear. Generally, an individual can be considered to be driving a vehicle as long as they are in the driver’s seat and the engine is running.

Cases in NC

From the definition of a driver under N.C. Gen. Stat. § 20-4.01(7) and (25), courts have decided in many cases what constitutes a driver. Here are several examples:

In State v. Mabe, 85 N.C. App. 500 (1987), the court determined that an individual was the driver of a parked car because he was in the driver’s seat and had turned off the engine himself.

In State v. Crawford, 125 N.C. App. 279 (1997), the court determined that there was enough evidence to show that the individual charged was the driver based off the facts that he was the only passenger in the car, the car was parked, the engine was off but still warm, and the individual was semi-conscious from drinking too much.

In State v. Fields, 77 N.C. App. 404 (1985), the court determined that the Defendant was the driver since he was found sitting in the driver’s seat of a motionless car with the engine running. Although the defendant argued that his friend was driving and he had only turned on the car for heat, the court found that he was in sufficient control of the car to be considered the driver/operator and therefore was guilty.

In State v. Clapp, 135 N.C. App. 52 (1999), it was determined that the Defendant was considered the driver of the vehicle, even though the vehicle was broken and did not function, since the vehicle was moving at the time of the charge.

From these examples, it is easy to see that an individual can be considered a driver without actually having driven anywhere. As such, it is important to know what your options are if you are facing a DWI. If you have been charged with a DWI, don’t hesitate to Contact Us at Minick Law for a free consultation about your case.

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