Can I be Charged With DWI if I Was Not Actually Driving My Vehicle?

Charlotte DWI Lawyer Brad Smith answers the question: “Is there more than one way for police to charge a person with DWI?”


Many North Carolinians mistakenly believe that they cannot be charged with driving while impaired, also known as DWI, if they are not actually driving a vehicle. But is that correct?

The answer to the question is, “It depends, but in most cases, you can face DWI charges for simply sitting in your car.” If you were charged with DWI for sitting in your vehicle or even outside your car, contact a local criminal defense attorney as soon as possible.


car-on-side-of-road-Charlotte-Monroe-Mooresville-DWI-Lawyer-300x200What is considered DWI in North Carolina?

In order to understand why you can be charged with driving while impaired if you were not actually driving at the time of the arrest, you need to understand how North Carolina law defines “DWI.”

Under N.C.G.S. § 20-138.1, drivers can be charged with driving while impaired (DWI) for operating a motor vehicle in a public place if:

  • They are under the influence of alcohol or any other impairing substance;
  • Their blood alcohol concentration (BAC) is at least .08% or .04% for commercial vehicle drivers; or
  • They have any metabolized Schedule I controlled substances in their system.

The law says I can be charged with DWI for operating a motor vehicle, but it does not say anything about sitting in the car,” you may wonder. North Carolina extended the term “operating” to include “having physical control” of the vehicle.

You can be charged with DWI for driving a motor vehicle while impaired or having physical control of the car which has the engine running. It means that you can face DWI charges even if your vehicle was not in motion at the time of your arrest.


Is There No Way to Avoid DWI Charges?

As mentioned earlier, whether or not you can be charged with DWI when your vehicle is not in motion depends on the specific facts of your case. The police officer will likely consider the following factors before charging you with DWI:

  • Whether you have the engine running
  • How and where your car is parked
  • Where in the vehicle you are sitting (or standing outside)
  • Whether the engine is still warm

Also, the officer will evaluate other factors to determine whether you have recently operated the vehicle while impaired or had the intention to drive under the influence.

If the police officer has reasonable grounds to arrest you and charge you with driving while impaired, you may face a DWI charge. However, being charged with DWI is not a conviction.

You may still be able to get the charges dropped or dismissed if your North Carolina criminal defense attorney can prove that you were not actually operating the vehicle and had no intention to do so.

It is important to contact a DWI defense lawyer in North Carolina as soon as possible to review your unique situation and construct a strong defense strategy to avoid a conviction.

Contact our attorneys at Arnold & Smith, PLLC, to discuss the specifics of your case and help you build the best legal defense strategy possible. Get a phone or video consultation by calling at (704) 370-2828 to speak with our detail-oriented and well-versed lawyers with offices in Charlotte, Lake Norman, and Monroe, please contact Arnold & Smith, PLLC today or find additional resources here.







The criminal defense attorneys at Arnold & Smith, PLLC make it their mission to zealously defend their clients on a wide range of criminal matters at both the state and federal levels. These matters may include any charge from traffic offenses; DWI/DUI; drug charges (from simple possession to possession with intent to distribute and trafficking); gun permit denials; weapons offenses; and property crimes (larceny, breaking and entering, robbery, fraud, embezzlement, white collar offenses); to sexually related offenses (indecent exposure; sexual assault, crimes against nature, removal from sex offender registry); and violent crimes (domestic violence; assault; manslaughter; homicide, murder). Other legal issues that Arnold & Smith, PLLC criminal clients may be facing include restraining orders, restraining order and probation violations, expungements; appeals; and immigration issues related to criminal charges. Our criminal defense attorneys are passionate about ensuring that individuals empower themselves by being informed about their constitutional rights, and stand at the ready to fight in the defense of those facing criminal charges.





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