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.”

Here is some important case law on sentencing New Jersey DWI offenders. In State v. Luthe, 383 N.J. Super 512 (2006), the Appellate Division held that the amendments to the sentencing provisions of N.J.S.A. 39:4-50(a)(3) effective January 20, 2004, make it clear that a third or subsequent DWI offender must be sentenced to 180 days in jail, subject to as much as 90 days credit for time spent in an IDRC-approved in-patient residential facility. Work release or credits for out-patient therapy are not permitted for these defendants.

Also, in State v. Burroughs, 349 N.J. Super 225 (2002), in order to receive the benefit of a step down in sentencing (being sentenced as a first rather than a second offender or a second offender rather than a third), the defendant must have a period of a full ten years between his second and third offenses. Furthermore, in determining the relevant date for calculating sentence enhancements based upon a prior drunk driving offense, the date of the prior offense controls as opposed to the date of the prior conviction. State v. Bischoff, 232 N.J. Super 515 (1989).

In a drinking and driving prosecution, almost all evidence discovered during a lawful, warrantless search of a motor vehicle is legally admissible against the defendant under the plain view exception to the warrant requirement. The plain view doctrine was established by the United States Supreme Court in the case of Coolidge v. New Hampshire, 403 U.S. 443 (1971). The original plain view exception required proof of three elements: 1) the police officer had to be lawfully in the viewing area. Basically, the officer must have a legal right to be in the place from which he or she makes the observations. 2) the officer was required to discover the evidence inadvertently, meaning that the officer did not know where the evidence was in advance. 3) the criminal nature of the item must be immediately apparent.

The original test has been modified by the United States Supreme Court in subsequent decisions. In Texas v. Brown, the immediately apparent requirement was modified as the police must have probable cause to associate the item seen in plain view with criminal activity. Texas v. Brown, 460 U.S. 730 (1983). In 1990, the Court again modifed the test as the inadvertent aspect of the discovery of evidence was not a necessary condition. Basically, they did away with the second prong of the test.

As modified, the New Jersey Supreme Court has accepted the three requirements governing the plain view exception as described in Brown. As modified, the plain view exception in New Jersey will require proof that:

1) at the time of the viewing of the evidence, the officer was in a location where he or she had a right to be.

2) the officer discovered the evidence inadvertently, meaning that he or she did not know in advance where the evidence was located and did not intend beforehand to seize it; and

3) there was probable cause to associate the items seen in plain view with the evidence of criminal activity.

Interestingly enough, New Jersey has yet to drop the inadvertent requirement from plain view analysis as was done by the United States Supreme Court in Horton v. California, 496 U.S. 128 (1990).

Although it does not seem logical, many drunk driving arrests every year are conducted inside the home. Normally these home arrests take place either as a result of the suspected drunk driver being followed to his or her home by the police or because the drunk driver attempted to conceal their offense by leaving the scene of an accident. Whatever the underlying reason for an arrest within the home, all of these arrests are conducted by the police without an arrest warrant. Therefore, when the defendant moves to suppress the evidence, the burden will be on the State to show that the entry into the defendant’s home was predicated on one or more of the recognized exceptions to the warrant requirement. In the drunk driving context, these exceptions normally involve the following:

Consent: This consent must be given voluntarily and knowingly. The burden is on the State to show the defendant knew he had a right to refuse consent.

Hot pursuit: In Warden v. Hayden, 387 U.S. 294 (1967), the United States Supreme Court recognized the right of police, who have probable cause to believe that a crime has been committed by a fleeing suspect, to pursue that person into his or her home in order to make an arrest. The underlying offense/crime must be serious in nature. In New Jersey, drunk driving and disorderly persons offenses are not generally considered serious enough for the purpose of making a warrantless home entry during hot pursuit.

Exigent Circumstances: Police may enter a home without a warrant to make an arrest if, (1) the police have probable cause to believe that the suspect has committed a crime and (2) the police must be confronted with exigent circumstances that require the immediate entry into the home in order to prevent escape, loss of important evidence, or to prevent death or bodily injury to a person. The exigent circumstances require the police take immediate action and make it impractical to seek a warrant.

Seizure outside the home: An officer may seize a suspect, either by arrest or detention, outside the suspect’s home. If the suspect attempts, thereafter, to enter his own home, the police may follow the suspect into the home for the purpose of continuing the seizure or completing the arrest.