New Jersey Criminal and DWI Lawyer & Attorney : John Marshall Law Firm : Drunk Driving, DUI : Monmouth County, Middlsex County, Union County, New Jersey

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.

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Here are a few interesting cases concerning "operation of a motor vehicle" in the context of drunk driving charges in New Jersey. In State v. Morris, 262 N.J. Super 413 (1993), the Appellate Division held that a defendant's attempt to start the engine of his car, which was thwarted when a police officer grabbed the keys from his hand, demonstrated an intent to operate the vehicle. The possibility of the vehicle being put in motion coupled with the defendant's intent to start the engine was sufficient evidence to constitute operation within the meaning of N.J.S.A. 39:4-50(a).

In State v. George, 257 N.J. Super. 493 (1992), the court held that "Operation may be proved by any direct or circumstantial evidence--as long as it is competent and meets the requisite standards of proof. The vehicle's operating condition combined with defendant's presence behind the steering wheel permits the logical conclusion of intent to drive." This is an Appellate Division case that conflicts slightly with State v. Daly, 64 N.J. 122 (1973), which is a New Jersey Supreme Court case that found the State failed to meet the burden of proof for operation when the defendant was sleeping behind the wheel of his car with the engine running. There must be some additional evidence of intent to drive or move the vehicle beyond merely being behind the steering wheel with the engine running. Clearly these issues turn on the specific facts of your individual case.

Finally, in State v. Dannemiller, 229 N.J. Super 187 (1988), the Appellate Division held that "It was reasonable for the trier of fact to conclude that defendant had actually operated the vehicle. Defendant himself stated that he had been in Philadelphia in the early evening and that his vehicle remained parked on the roadway because he had run out of gas. There were no other persons in the area; defendant was in the driver's seat, and there was no other evidence that any other person was involved with the use of the automobile at the time in question."

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"Operation" is a crucial element that the State must prove beyond a reasonable doubt when prosecuting an individual for driving while intoxicated (DWI). There is some important case law in New Jersey regarding what constitutes "operation" sufficient to satisfy the State's burden of proof. First, an operator of a motor vehicle is defined as a person who is in actual physical control of the vehicle. One can be an operator without driving. State v. Wright, 107 N.J. 488. Furthermore, when one, in an intoxicated state, places himself behind the wheel of a motor vehicle and not only intends to operate it in a public place, but actually attempts to do so and there is a possibility of motion, he has operated the vehicle within the meaning of N.J.S.A. 39:4-50(a). State v. Mulcahy, 107 N.J. 467 (1987). Moreover, in the landmark case of State v. Daly, 64 N.J. 122 (1973), a person left a tavern at closing time, entered his car in the tavern's parking lot and started the engine to remain warm while "sleeping off" his intoxicated state. The court found that he did not have the requisite intent to operate his vehicle. In addition to starting the engine, evidence of intent to drive or move the vehicle at the time must appear. Finally, in State v. Sweeney, 40 N.J. 359 (1963), the court held that a person operates a motor vehicle under the influence of an intoxicating liquor, within the meaning of NJSA 39:4-50, when, in that condition, he or she "enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains in the driver's seat behind the steering wheel, with the intent to move the vehicle."

As you can see, intent is a key element that the State must prove. We had a client come in recently who is charged with DWI in New Jersey. He was sleeping in his vehicle with the car running and with the driver's seat reclined when he was approached by a police officer and charged with drinking and driving. With the case law discussed above it appears we have a very solid defense against the DWI charge because the State will be unable to prove operation since the driver was sleeping in the vehicle and the seat was reclined, making it almost impossible that he intended to operate the vehicle. The State has to prove this element beyond a reasonable doubt and it appears in that case that they will be unable to do so.

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Here are a few case summaries of important case law in New Jersey regarding w operation of a vehicle:

State v. Mulcahy, 107 N.J. 467 (1987)

The important precedent from this case is that the key to establishing operation is whether or not the defendant intended to operate the vehicle. The Supreme Court of New Jersey held that police officers, who saw defendant, who was drunk, stagger out of tavern into car that was illegally parked on sidewalk, could arrest defendant for purposes of submission to sobriety test when defendant started to put keys in the ignition. The defendant’s attempt to place keys in the ignition was “operation” of motor vehicle sufficient to warrant submission to the breathalyzer test.

State v. Daly, 64 N.J. 122 (1973)

The defendant did not possess an “intent” to operate his car notwithstanding the fact that the car was running insofar as he had been sleeping in the car with the heat on for almost 1.5 hours prior to police arriving.

State v. DiFrancisco, 232 N.J.Super. 317 (LawDiv.1988)

A defendant does not “operate” a motor vehicle under the DWI statute where it is impossible to move the vehicle. Defendant who was sitting behind steering wheel of pickup truck which was partially on a driveway and partially in a ditch and which, according to officer, could not be moved was not “operating” the truck and thus could not be convicted of driving while intoxicated.

In the absence of any evidence from the State showing that breathalyzer test was administered within a reasonable time after defendant was stopped for drunk driving, breathalyzer test results were inadmissible.

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