How is operation defined?
People always ask about the burden of proof in DUI cases and I always give the answer that the prosecutor has to prove both operation and under the influence in a driving under the influence case in Pennsylvania. The discussion almost always turns to topics of intoxication and what we can do to beat the DUI case on intoxication. Very rarely do we get questions on operation, which surprises me considering how many case I have beat based on an operation defense.
I think people think they were driving or not driving, so its a moot point.
There is way more to defend on operation then simply glancing over the issue.
First the bad news. If you are in the car alone and the ignition is on, you are deemed to be operating the car. No defense exists to say that it was freezing cold outside, you turned on the car for the heat, and decided to sleep one off in the parking lot because they threw you out of the bar at closing time and you knew you couldn’t drive. While this defense can win, we do our best not to use it because the case law is somewhat clearly against us.
The good news. The prosecutor has a very hard time proving operation circumstantially. They need an eyewitness that actually saw you behind the wheel of the car. If they don’t have an eyewitness, how can they prove you are the driver? Your own statement? There was no one else present?
If the cops show up after a one car accident, the car is turned off, and you are sitting on the curb next to wrecked car without the keys, how can they prove you didn’t start to drink AFTER the crash? How can they prove the true driver didn’t flee with the keys?
Operation is a very good defense in many DUI cases. Remember the prosecutor has the burden of proving their case beyond a reasonable doubt.