Operation vs. Driving in a NJ DWI Prosecution

State v. Thompson, A-2011-18T4

G.Marootian, Esq. Operation vs. Driving in a NJ DWI Prosecution ,

N.J.S. 39:4-50(a) provides penalties for “[a] person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more.”

On February 10, 2020, the New Jersey Appellate Division held that operation should be “interpreted broadly” to encompass a defendant sitting or sleeping behind the wheel of a car with the engine running because, as a matter of law, this constitutes an “intent to operate a motor vehicle.” State v. Thompson, A-2011-18T4, Approved for Publication, ____ N.J. Super. ____ (App, Div. 2020).

The Court said:

an intoxicated and sleeping defendant behind the wheel of a motor vehicle with the engine running is operating the vehicle within the meaning of N.J.S.A. 39:4-50(a), even if the vehicle was not observed in motion; it is the possibility of motion that is relevant.

The court states a ridged, and I respectfully believe, an incorrect statement of the law as it relates to operation. The court failed to cite or reconcile State v. Daly, 64 N.J. 122 (1973), where the Supreme Court rejected a broad definition of “operation” that would encompass an intoxicated driver behind the wheel of a running car. In Daly, the defendant was seated in his running car with the seat was slightly reclined outside of a bar. Daly told the Officer he “was sitting in the car to keep warm and intended to drive home in a little while.” Daly explained that he was going to “sleep it off.” The Daly Court explained, “in addition to starting the engine, evidence of intent to drive or move the vehicle at the time must appear.”

The court discards the requirement that the State prove the element of operation beyond a reasonable doubt, equating being behind the wheel of a running car with an intent to operate. The Court in Thompson explained, “this opinion expresses nothing new.” It does express a new rule of law; that intent to operate is proven, as a matter of law, when an intoxicated person, awake or sleeping, is found behind the wheel of a car with the engine running. I have filed a petition for certification with the NJ Supreme Court in a case similar to and cited in Thompson, seeking clarification from the NJ Supreme Court in this very significant ruling.  

The Element of Operation (vs. Driving) in A NJ DWI Prosecution

G.Marootian, Esq. Operation vs. Driving in a NJ DWI Prosecution

N.J.S.A. 39:4-50(a), the DWI Statute, prohibits “a person who operates a motor vehicle while under the influence . . . .” The statute does not define “operation.” Case law has over the years, defined operation. Case law, distinguishable from statutory law, is a reported decision from a higher court that interprets statutory law.

New Jersey Courts (case law) have construed operation as it applies to the DWI Statute broadly, broader than “driving” in the classic sense. In other words, the State in a NJ DWI prosecution does not have to present a witness who saw the defendant “driving” to prove “operation.”  Generally, there are three ways for the State to prove operation in a NJ DWI prosecution: (1) observation of a defendant driving, (2) defendant’s admission (of driving), and (3) circumstantial evidence that the defendant drove the vehicle to the place where found, or that the defendant intended to move the vehicle.

The State is required to prove each element of their case, including the element of operation, beyond a reasonable doubt. This burden never shifts (to the defendant). Many defendants believe that they must disprove the State’s version of a case. This mindset is wholly inaccurate and can lead to an ineffectual defense where for example, a defendant takes the stand when the State has not even met their legal burden of proof.

The third method of proof above (that the defendant drove or intended to drive) often presents fact-patterns that fall within the proverbial gray area of the law, and are thorny for courts, the prosecution, and defense. These cases are very fact-sensitive. In other words, whether the State can prove operation is highly contingent on the particular set of facts. For example, if a defendant is intoxicated behind the wheel of a car in a position other than a normal position for parking (e.g. on the shoulder of the Parkway, or in the middle of a roadway), courts have found sufficient circumstantial evidence of operation. Courts have also found operation where a defendant puts the keys in the ignition and shows evidence of an intent to move the vehicle.  Conversely, Courts have ruled against the state and for the defense where the evidence does not establish intent to drive, but something else, like simply keeping the engine warm while sitting in the car. Courts have found insufficient evidence of operation where the defendant was behind the wheel of a car parked lawfully in a driveway sleeping with the engine off (because for example, a reasonable alternative explanation is that the defendant could have simply come out of the house to “sleep it off” with no intent to drive). Courts have also found insufficient proof of operation where the defendant was behind the wheel of a parked car but did not have a “present intent” to drive.

Cases involving cars that are not “moving” (i.e. driven in the classic sense) are extremely fact-sensitive. Again, the State (the prosecution) has the constitutional burden to prove every element of a DWI offense, including “operation,” beyond a reasonable doubt. A not guilty finding (or a dismissal) is possible if these cases are handled and analyzed properly.

Greggory M. Marootian, Esq.
154 South Livingston Avenue
Suite 101
Livingston, NJ 07039
Cell: 201-404-8990
Office: 973-994-3732
Fax: 973-994-2239
Email: gmmesq@aol.com