Whether or not the engine is running in the vehicle can sometimes be a key factual element of DWI cases. If the engine is not running, it is difficult to meet the three prong test to show operation. The elements of the three prong test are: physical control over the vehicle, an intent to operate, and an ability to do so. This third prong requires at least that the vehicle be capable of operation. State v. Derby, 256 N.J. Super 702 (1992).
In State v. Dickens, 130 N.J. Super 73 (1974), the defendant was found in his automobile on the shoulder of a highway, which could have only been reached by operation of the automobile to the point where it was found. Defendant admitted that he had been drinking in a bar in Rahway, and admitted that he was driving his car to take someone home to Piscataway when he did not feel well and stopped by the side of the road. Defendant was not in a place which was normal for parking. Furthermore, when defendant was finally aroused from his "deep sleep", according to the state trooper he asked, "what did he hit?" "The inference is inescapable that defendant was in fact operating his motor vehicle while under the influence of intoxicating liquor." Therefore, in this case, because he was asleep with the engine running he was found guilty of driving while intoxicated.
In State v. Sweeney, 77 N.J. Super 512 (1962), the defendant was also found asleep in his vehicle with the engine running. The "defendant's acts, while intoxicated, in entering the automobile, turning on the ignition, starting and maintaining the motor in operation, and remaining in the driver's seat behind the steering wheel, where he was found by the police, justify his conviction as the operator of the automobile. In an intoxicated condition, he was, for all practical purposes, then in control of a dangerous instrumentality."
Finally, in State v. Baumgartner, 21 N.J. Super 348 (1952), the defendant was found asleep in his vehicle with the engine off. Defendant was found by the police with his head over the steering wheel, his right arm hanging through the spokes and the left arm hanging to one side. "There was the smell of alcohol. The defendant's vehicle had apparently stalled; the headlights and ignition were on, but the motor was not running." The officer found the truck some six feet from the curb, standing near an intersection that had no traffic light. These facts constituted sufficient evidence to show operation while under the influence of alcohol.
As you can see, many times these cases turn on where the vehicle is stopped. If the vehicle is on the side of the road of a highway or residential street, it is easier for the State to show operation because the vehicle had to be moved while the person was intoxicated to reach that point. However, if the defendant was sleeping in the car in the parking lot of a tavern or bar or in a municipal parking lot, it is more difficult for the state to show operation, especially if the engine is not running. In these types of cases, there is a strong defense to the DWI charge as the three prongs necessary to show operation can not be satisfied by the State.
