Q: Is there intent to operate
If my Vehicle was out of fuel keys in ignition can i get a DUI drinking inside on the shoulder of highway
A: Maybe that is up to a judge, a prosecutor would argue that since the keys were in the ignition you intended to operate the car, the fact that the car was on the shoulder shows that you operated it and you intended to continue to operate the car just due to circumstances beyond your control it could not be operated. Everything is intent and intent is determined by the judge so no easy answer. Best to ask your lawyer what he thinks as we don't know all the facts of your case and intent will be judged on all the surrounding circumstances not just being out of fuel but that is a good fact on your side especially if you can show 5 bottles of beer were found on the road next to your car showing that you drank after the car stopped. I had a case like this and he got a dismissal.
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