Courts have consistently examined certain factors in deciding whether a person was “operating” a motor vehicle in violation of VTL § 1192. In People v. Zervakos, N.Y.L.J., Feb 27, 1998, at 33, col.6. (Nassau Co.), The Court set forth several factors that are typically considered when the element of “operation” is challenged. These factors are:
- Whether or not the person in the motor vehicle was asleep or awake;
- Whether or not the motor was running;
- Whether or not the keys were in the ignition;
- The location of the vehicle and all the circumstances bearing on how the vehicle arrived at a given location; and
- The intent of the person behind the vehicle.
In Zervakos, supra, the Court went through the five-factor analysis and concluded that the defendant won “… on factors 1, 2, 3 and 5, but not factor 4, the crucial factor of the van’s location and how it got there.” As a result, the Court found that the accusatory instrument adequately alleged the element of operation