What happens if police find you drunk in your car, parked?

What happens if you are found drunk pulled over in your car?

Recently, a Webster police officer faced disciplinary action for not correctly investigating an incident in which a Rochester police officer was found possibly drunk and passed out in his personal car.

But can you be charged with driving while intoxicated in New York if you are found drunk in your car, even if you aren't driving it at the time?

According to DWI attorney Edward Fiandach, in New York State it depends on the circumstances.

"The classic example is a motor vehicle crashed onto a guardrail, with an intoxicated driver, no bar or tavern around, and no alcohol in the vehicle," Fiandach said. "Then they can establish, circumstantially, that you must have been intoxicated driving the motor vehicle. If you're trying to sleep it off, they can attempt to prove it circumstantially. Generally, if you're in a bar parking lot sleeping it off, you're probably in pretty good shape. If you're on the side of the road and you're sleeping it off, the fact of the matter is that you probably drove in an intoxicated condition to get to that point on the road."

What happens when you are found drunk pulled over in your car?

New York State does have a public safety exception, Fiandach said. If someone is passed out in their car or it looks like they are injured, a police officer can inquire about the circumstances of the situation, which would suffice as an exception to the probable cause requirement.

At that point, if the officer smells or can detect the presence of alcohol, they will ask the person if they have been drinking. The officer could then give the person a Horizontal Gaze Nystagmus examination, an eye test that can help detect whether or not someone is intoxicated.

If the officer suspects that the person was under the influence while operating the vehicle at the point where it is stopped, Fiandach said, they will ask the person to step out of the car and do a more intensive investigation. This investigation could include more field sobriety tests like walking a specific distance from heel to toe, standing on one leg, and possibly another Horizontal Gaze Nystagmus examination.

The officer may give the individual the chance to blow into a breath-testing device. While this breath test isn't admissible in court, it can provide the officer with an indication of whether you've been drinking. In New York State, there is no penalty for refusing this initial breath test at the scene.

If the test shows the presence of alcohol, the officer will arrest the individual, read them their rights and then take them to the barracks for an official evidentiary breath test.

What happens if you are arrested for a DWI?

Denying a chemical test at police barracks can come with penalties. If you refuse this test, your license will be initially suspended and then revoked for refusing to submit to the chemical test.

"Even if the criminal case, the drunk driving charge, is dismissed, the refusal revocation can still be upheld," Fiandach said.

You will most likely be let go after you are brought to the barracks and asked to take the chemical test. However, if you refuse the test, you could be held for arraignment the next morning.

"Driving while intoxicated is not a qualified offense," Fiandach said. "In other words, it's not an offense where they will generally set bail."

Whether you are pulled over or found asleep in your car, if there's circumstantial evidence that you were operating the vehicle under the influence, the investigation and arrest process will be the same.

What is the difference between a DWI and DWAI?

New York State does not use the term DUI or driving under the influence. In New York, you can either be charged with a DWI, which is a crime, or the lesser offense, driving while ability is impaired, which is a traffic infraction, Fiandach said. "It's not a criminal charge, but it does carry some heavy-duty licensing sanctions."

If someone refuses the breath test, they don't seem too intoxicated on the body cam footage and do relatively well on the field sobriety tests, a judge or jury may find them guilty of a DWAI rather than a DWI, according to Fiandach.

"It's a lesser included offense of driving while intoxicated."

More: Webster officer found off-duty cop reportedly passed out in a car. He didn't test or arrest him.

— Madison Scott is a journalist with the Democrat and Chronicle who edited our Weld Street Project and also did reporting for it. She has an interest in how the system helps or doesn't help families with missing loved ones . She can be reached at MDScott@gannett.com .

This article originally appeared on Rochester Democrat and Chronicle: What happens if police find you drunk in your car, parked?