The Element of 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.

Morality Of NJ DWI Defense Lawyers

Recently, a prosecutor who I do not know well took a jab at me, a passive aggressive innuendo, questioning the morality of those who defend drunk drivers who “go out there and kill people.” I then thought of another prosecutor who once questioned the ethics of defense lawyers. He used his religion to support his position that defense lawyers lack a spiritual compass, and prosecutors are morally superior.  This made me ponder and even question the morality defense lawyers and my chosen profession. I ultimately came to my senses.

First, regarding religion, the major Abrahamic religions (Judaism, Christianity, and Islam) regard justice as an important virtue. All man/woman is imperfect. I doubt, therefore, that any interpretation of religion would favor allowing the police and prosecutor alone to use their power without restraint. Some people know and quote religion and use it to judge others. Their actions are in deep contrast to religious teachings. In other words, they talk the talk but do not walk the walk. As my father once said, look to a person’s actions, not their words.

I say to anyone using religion to question the morality of defense lawyers, stop being so “pious.” Charles Reade, a non-practicing English Lawyer (June 1814 – April 1884) aptly defined being “pious” as “marked by conspicuous religiosity a hypocrite—a thing all pious words and uncharitable deeds.” I have witnessed injustice and moral decay in the system at times, from prosecutors, and particularly the “pious” one who once questioned my morals.

Second, I thought of the alternative that my colleagues would prefer, a system without defense lawyers. The police and prosecutor can determine who is guilty because they are morally superior. There would be no need for proof beyond a reasonable doubt, fair and impartial judges or the due process (fundamentally fair process) of law. What can possibly go wrong with allowing the police and prosecutor to dispense their powers as they see fit? The police and prosecutor have immense power. Defense lawyers are necessary to assure that this power is dispensed justly.

Last, I try not to be “pious” (a hypocrite) although it is hard (even impossible) for me not to judge some people. All humans are imperfect although for me, manipulative people, men who abuse/assault women, people who hurt kids are some on my list of people who I find it hard not to judge. Most clients charged with DWI, are in a dark period, many feeling alone, depressed, anxious, ashamed and embarrassed. For my colleagues on the “other side” of the system, I say, we are all part of the same system and on “one side” of justice. I am happy to say that in my 26-years as a defense lawyer, I respect the vast majority of prosecutors, police officers and judges who are honorable and straightforward. Also, remember the words of Abraham Lincoln; “I have always found that mercy bears richer fruits than strict justice.”

Comments, Questions: Greggory M. Marootian, Esq. –

Lying to Convict A NJ DWI Defendant

In a February 2, 2013 New York Times Editorial, Professor Michelle Alexander, Esq., answers the question “Why Police Lie Under Oath.”

I am currently handling a DWI appeal. The testimony presents a classic case of police lying to obtain a conviction. The police violated my client’s constitutional rights. The violation was inadvertent due to a recent shift in NJ DWI law.  Rather than conceding the mistake, they engaged in a classic cover-up by presenting false testimony. My client summed it up by asking me why the cops could not just concede their mistake, use it as a learning tool and move forward. I left court and drove to another NJ Municipal Court that evening. I watched a short trial. The arresting officer conceded an error during his testimony. This was not easy for him to look less than perfect in open court.  Watching the trial was a refreshing contrast to the judicial darkness I left hours earlier.

The culture among some police, with the approval of Courts, is “Machiavellian.” Niccolò di Bernardo dei Machiavelli was, among other things, a writer and philosopher during the Renaissance. His writings are captured in the term “Machiavellianism”; deceit is justified to maintain power – morality has no place in achieving practical goals – deceit is necessary. When I asked the Prosecutor if he felt good about how the State’s case “went in”, he said, “your client is a 3rd offender.” In other words, the ends justify the means.

In her editorial, Professor Alexander, discusses confirmed “patterns of deceit” in New York where, according to the Bronx District Attorney, “it had become apparent that the police were arresting people even when there was convincing evidence that they were innocent. To justify the arrests … police officers provided false written statements, and in depositions, the arresting officers gave false testimony.” One New York Judge, Gustin L. Reichbach said, “this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.”

Why do some police lie? Professor Alexander explains, “Because they can.” They know that when it comes to their word against the word of a defendant, the Court will always believe the cop. For defendants, especially poor minorities, “Police know that no one cares about these people.” Professor Alexander also discusses the rewards to police for making arrests – i.e. the financial incentives – follow the money.  Is this what our country has become? America should be a beacon of greatness – of morality. It is troubling and embarrassing to see this moral decay in our country.

Of course, “Exposing police lying is difficult largely because it is rare for the police to admit their own lies or to acknowledge the lies of other officers. This reluctance derives partly from the code of silence that governs police practice and from the ways in which the system … is structured to reward dishonesty.” Professor Alexander poignantly notes, “The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become.”

For minorities and the poor, the impact of lying takes the harshest toll. This phenomenon, known as “testilying“, can however, adversely affect anyone who happens to be ensnared, including a NJ DWI defendfant.

Municipal Courts – Judicial Independence

NJ Municipal Courts have jurisdiction to hear traffic offenses, including DWI (N.J.S. 39:4-50). “It is through the Municipal Courts that most citizens in the State come into contact with the judicial system.” “[I]t is from their experience in the Municipal Courts that most people base their conclusions about the quality of justice in New Jersey.” (

The “Vision Statement” of NJ Municipal Courts ( provides that the Municipal Court system is “an independent branch of government constitutionally entrusted with the fair and just resolution of disputes in order to preserve the rule of law and to protect the rights and liberties guaranteed by the Constitution and laws of the United States and this State.” The vision is to be a “system, characterized by excellence that strives to attain justice for the individual and society through the rule of law … [to] earn the respect and confidence of an informed public.” The “Core Values” are: (1) Independence, (2) Integrity, (3) Fairness and (4) Quality Service.

These are ideals – they are visions – constitutional aims if you will. In the movie “The Verdict”, lawyer Frank Galvin (played brilliantly by Paul Newman) said to a jury: “[The] marble statue[s] … the trappings of the court … are just symbols of our desire to be just.” “They are…they are, in fact, a prayer … [a] fervent and a frightened prayer.”

“The Due Process Clause of the [U.S.] Constitution prohibits deprivations of life, liberty, or property without fundamental fairness through governmental conduct that offends the community’s sense of justice, decency and fair play.” Moran v. Burbine, 475 U.S. 412, 432-34, 106 S.Ct. 1135, 1146-48 (1986). This is based upon the premise that, “[D]ue process of law is a summarized constitutional guarantee of respect for those personal immunities which . . . are so rooted in the traditions and conscience of our people so as to be ranked as fundamental.” Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205 (1952).

In order for constitutional guarantees to mean anything, Judges are empowered to act with independence. This means a Judge is a neutral arbiter, separate and apart from the Legislative and Executive branches of government.  This is a vital to dispensing justice in NJ Municipal Courts and our country.

In 1788, Alexander Hamilton, discussing the ratification of Constitution in “The Federalist” (aka “Federalist Papers”), discussed the importance of judicial independence.  He said, “the general liberty of the people can never be endangered … so long as the judiciary remains truly distinct from both the Legislature and the Executive.” Judicial independence “may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure … the citadel of the public justice and the public security.” “The complete independence of the courts of justice is peculiarly essential … [w]ithout this, all the … rights or privileges would amount to nothing.” Hamilton said, “[i]f … the courts of justice are to be considered as the bulwarks of [the] … Constitution …, nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”

Almost 200 years later, in State v. Paris, 214 N.J. Super. 220, 225 (Law Div. 1986), New Jersey Superior Court Judge Haines, a brilliant jurist, reminded and instructed NJ Municipal Courts that “[i]n our system of justice, judges act independently … [t]hey must if the court system is to maintain integrity.” Id.  Judge Haines instructs, “[l]iability to answer to everyone who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of [the court’s] freedom, and would destroy that independence without which no judiciary can be either respectable or useful.” Id. (citing Bradley v. Fischer, 80 U.S. 335, 347; 20 L.Ed. 646 (1871).

The Constitution is the foundation of our system of justice. It is in fact, the foundation of the United States. The Municipal Court Vision Statement (to be “an independent branch of government constitutionally entrusted with the fair and just resolution of disputes in order to preserve the rule of law and to protect the rights and liberties guaranteed by the Constitution and laws of the United States and this State”) is embodied in the very spirit of our country. The vision statement is, as lawyer, Frank Galvin said in “The Verdict”, “our desire to be just.”

In the Municipal Court, Judges are empowered and indeed, required to act with independence – in order to be what Alexander Hamilton called, “the bulwarks of [the] … Constitution.” The Judge’s role is indeed, as Hamilton said, an “arduous  … duty.” It is not and cannot be a mere “vision” or hope, but an imperative – a commandment if you will, necessary to ensure the proper functioning of the Government.

A DWI offense in NJ is not a “crime” – it has been classified as a “quasi-criminal” offense. That term is used in the context of a defendant’s rights to constitutional protections, for example, the right to a speedy trial, the right to receive discovery and the right to due process. A defendant charged with DWI in New Jersey is entitled to the same constitutional guarantees afforded to any defendant in the criminal justice system.

NJ Municipal Court Judges, must protect every defendant’s rights – an “arduous … duty.” Otherwise, the system becomes an unconstitutional assembly line. “Better a little with righteousness than much gain with injustice” (Proverbs 16:8).

I am offended when people use the term “technicality” when referring to a constitutional issue or defense. A technicality is an obscure rule buried in main text, often in a small footnote, only understood by experts. The Constitution is not a technicality. It is a fundamental legal framework – forming the very foundation of our Country.

NJ Municipal Court Judges are empowered and required to undertake their “arduous … duty” with independence. This is as Alexander Hamilton said, “an indispensable ingredient [to the] constitution, and, in a great measure … the citadel of … public justice and … public security.” Hamilton explained that “[t]he complete independence of the courts of justice is peculiarly essential … [w]ithout this, all the … rights or privileges would amount to nothing.” Over 200 years ago, Hamilton was making as Lawyer Frank Galvin from “The Verdict” said, “a prayer … [a] fervent and a frightened prayer.”

NJ DWI – Speedy Trial

I field a lot of inquires from defendants regarding the length of time their DWI case is taking (or took to conclude) – and whether these delays are grounds for a dismissal.

Many clients confuse the unrelated concept of statute of limitations (N.J.S.A. 39:5-3) with the constitutional right to a speedy trial. N.J.S.A. 39:5-3 is the limitation period within which a Complaint can issue and process must be served for motor NJ vehicle violations including DWI (N.J.S.A. 39:4-50). A DWI Complaint, for instance, must be issued and served within ninety days of the alleged offense. A right to a “speedy trial” however is a right guaranteed to defendants by the Constitution to have an offense speedily concluded

Below is an overview of the issue (speedy trial) in the context of a NJ DWI charge. Remember, every case is different and fact sensitive. Presenting this defense issue, like much of the law, is as much art as it is science.

In State v. Cahill, 213 N.J. 253 (2013), the New Jersey Supreme Court examined the constitutional right to a speedy trial in the context of a DWI charge. The Court instructed, “[p]rompt disposition of criminal or quasi-criminal charges addresses the interest of the accused to be treated fairly … and prevents prejudice to the accused.” Id. at 276.

Courts should assess “four non-exclusive factors” to determine if a defendant’s constitutional speedy trial guarantees have been violated: “length of the delay, reason for the delay, assertion of the right by a defendant, and prejudice to the defendant” Id. at 264.; see also State v. Farrell, 320 N.J. Super. 425 (App. Div. 1999); State v. Tsetsekas, 411 N.J. Super. 1 (App. Div. 2009).

The Length of the Delay

 “There is no set length of time that fixes the point at which delay is excessive.” State v. Tsetsekas, 411 N.J. Super. at 12. In Cahill, the Court instructed that a gauge to a “presumptively prejudicial” delay is “the amount of time customarily required to dispose of similar charges.”  State v. Cahill, 213 N.J. at 265.

The Cahill Court referred to New Jersey Supreme Court Justice Wilentz’s July 26, 1984 Directive #1-84 instructing that DWI charges be disposed of in 60 days. Id. at 269. The Court called the 60-day period a goal, not a “bright line rule.” Id. at 270. However, the Court said, “90 to 120 days should be the norm for disposing of [DWI] cases.” Id. at 274. The Court further noted that a case that “approaches one year” is “presumptively prejudicial.” Id. at 265. In Cahill, the Court called the 16-month delay “too long.” Id. at 277. Likewise, in State v. Tsetsekas, the Court found that 344 days, “more than five times the stated [Supreme Court] objective” … weighted heavily for the defense. State v. Tsetsekas, 411 N.J. Super. at 11.

The Reason for the Delay

“Once a defendant asserts a violation of his right to a speedy trial, the government is required to identify the reason for the delay.” State v. Cahill, 213 N.J. at 266.

A deliberate delay is weighted heavily for the defense. Id. The Court explained however that “[a] more neutral reason, however, such as negligence or a heavy caseload, will also be weighed against the government … because it is the government’s ultimate responsibility to prosecute cases in a timely fashion. A defendant does not have an obligation to assert his right to a speedy trial because he is under no obligation to bring himself to trial. Id. at 266. Court delays are charged to the State, not to the Defendant. State v. Farrell, 320 N.J. Super. at 450-451.

Assertion of Right

In Cahill, the Court said, “[a] defendant does not have an obligation to assert his right to a speedy trial because he is under no obligation to bring himself to trial.” Id. at 266. The Court explained, “[i]t is the State’s obligation to prosecute and do so in a manner consistent with defendant’s right to a speedy trial … Assertion of the right … is not dispositive of the merits of the claim and is certainly not a pre-condition to the invocation of a defendant’s right to a speedy trial. Id. at 274.


In Cahill, the Court explained that the “minimization of anxiety attributable to unresolved charges” is one of the interests the speedy trial right is designed to protect. Id. at 266. “A speedy trial violation can be established without evidence of prejudice.” Id. at 274 (citing State v. Farrell, supra., 320 N.J. Super. at 446. The Cahill Court explained, “every unresolved case carries with it some measure of anxiety.” Id.  “This is particularly true when one of the sanctions [for DWI is] a license suspension.” Id.

The court instructed in State v. Farrell, “prejudice to a defendant resulting from delay is no longer confined to inability to defend on the merits. Prejudice can also be found from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution and the like.” State v. Farrell, 320 N.J. Super. at 452.

Likewise, the Court in Tsetsakas recognized that “significant prejudice may also arise when the delay causes the loss of employment or other opportunities, humiliation, the anxiety in awaiting disposition of the pending charges, the drain in finances incurred for payment of counsel or expert witness fees and the other costs and inconveniences far in excess of what would have been reasonable under more acceptable circumstances. State v. Tsetsekas, 411 N.J. Super. at 13.

CONCLUSION: Winning a DWI case with a speedy trial motion is possible. Successful advocacy requires knowledge of the underlying legal tenets. These legal principles must be applied to the particular facts of each case by counsel with an artist’s touch.