State v. Thompson, A-2011-18T4

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.