“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.

Many times clients ask us about possible defenses to charges for drinking and driving in New Jersey. A defense of extreme sensitivity to alcohol is not a defense to DWI charges in New Jersey under N.J.S.A. 39:4-50. “Hypersensitivity to the effects of alcohol does not constitute a defense to a charge of drunk driving.” State v. Cryan, 363 N.J. Super 442 (2003). Contributing factors of medication or physical or nervous conditions rendering defendant more susceptible to alcohol are not defenses if such factors caused or contributed to impairment of defendant’s faculties. State v. Corrado, 184 N.J. Super 561 (1982). Also, the disease of alcoholism is not a defense to prosecution for drunk driving. State v. Housman, 131 N.J. Super 478 (1974). Finally, the insanity defense is also not available in New Jersey DWI cases as a viable defense. “As with voluntary intoxication, entrapment, and duress, the insanity defense has a high potential for serving as an instrument of pretext.” State v. Inglis, 304 N.J. Super 207 (1997). Allowing a defendant prosecuted under N.J.S.A. 39:4-50(a) to assert the common law insanity defense would be contrary to the legislative policy embodied in the statute against permitting defenses based upon a mere pretext. Accordingly, the use of the insanity defense, under both the common law and the Code of Criminal Justice, is not permitted in a DWI case. Id.

These above defenses, therefore, are not available in defending against drunk driving charges in New Jersey.

Here is an interesting article I came across regarding speeding and DWI offenses in New Jersey and the number of fatalities resulting from each.

“Speed kills more than DWI, survey says”

Here are some DWI cases in New Jersey with very interesting and sometimes peculiar factual scenarios. In State v. Metcalf, 166 N.J. Super 46 (1979), a defendant, who after being arrested, processed, and released by the police is subsequently arrested again for drunk driving on the same evening may be properly convicted of two separate offenses as his conduct demonstrates two distinct episodes of intoxicated operation. Talk about having a bad day…..two DWI charges in one day, ouch.

In State v. Dannemiller, 229 N.J. Super 187 (1988), the driver ran out of gas and was sitting in his vehicle by the side of the road. The court held that, “It was reasonable for the trier of fact to conclude that the 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 evidence that any other person was involved with the use of the automobile at the time in question.”

There is a right to a speedy trial when charged with drinking and driving in New Jersey under N.J.S.A. 39:4-50. The New Jersey Supreme Court held that there are four factors the court must weigh and balance when a defendant asserts a speedy trial claim arising from a delay in a municipal court drunk driving prosecution. State v. Gallegan, 117 N.J. 345 (1989). The factors balanced include: (1) the length of the delay, (2) the reasons for the delay, (3) any assertion by the accused of speedy trial rights, and (4) any prejudice to the accused from the delay.

A recent Appellate Division decision on point is State v. Fulford, 349 N.J. Super 183 (2002). In this case, there was a relatively lengthy delay (a total of 32 months) caused by the State’s retention of the municipal court charges until PTI was resolved. It was defendant who applied for PTI and spent 14 months successfully completing the program. As a result, the defendant achieved dismissal of the companion indictable charges, and through most of the delay failed to request a municipal court trial or even make an inquiry concerning his pending drunk driving charge. Accordingly, the defendant’s motion to dismiss on speedy trial grounds was properly denied.

On the other hand, in State v. Farrell, 320 N.J. Super 425 (1999), the court concluded that the delay in completing the case was far beyond what was reasonable and was plainly excessive as the case dragged out for over 663 days and 13 court appearances. The reasons for the delay were the prosecution’s clear inattention to his responsibilities along with the municipal court’s patent failure to prepare itself to try the matter quickly and shepherd it to resolution efficiently. “These shortcomings were so egregious that no showing of prejudice was required in order for this defendant to succeed on his argument that, in fundamental fairness terms, he was denied his adequately (and frequently) asserted right to a speedy trial.”

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.

A very important aspect in sentencing for DWI convictions is whether you are categorized as a first, second, or third offender. This categorization can significantly effect the penalties involved. One of the strategies for avoiding categorization as a second or third offender is to argue that your prior convictions were “uncounseled”, meaning that the defendant was not represented by counsel in his prior DWI cases. This issue was discussed in the New Jersey Supreme Court case of State v. Hrycak, 184 N.J. 351 (2005). ” A defendant is faced with a three-step undertaking in proving that a prior uncounseled DWI conviction should not serve to enhance the jail component of a sentence imposed on a subsequent DWI conviction. As a threshold matter, the defendant has the burden of proving in a second or subsequent DWI proceeding that he or she did not receive notice of the right to counsel in the prior case. He or she must then meet the two tiered test in Laurick (citation omitted). In that vein, if the defendant proves that notice of the right to counsel was not provided, the inquiry is then bifurcated into whether the defendant was indigent or not indigent. ‘If the defendant was indigent, the defendant must prove that the DWI conviction was a product of an absence of notice of the right to assignment of counsel and non-assignment of such counsel without waiver.’ On the other hand, if the defendant was not indigent at the time of the prior uncounseled conviction, the defendant should have the right to establish such lack of notice as well as the absence of knowledge of the right to be represented by counsel of one’s choosing and to prove that the absense of such counsel had an impact on the guilt or innocence of the accused or otherwise ‘wrought a miscarriage of justice for the individual defendant.’”

Many times clients ask about the famous “Miranda” warnings and the validity of their DWI charges if the law enforcement officers failed to give the Miranda warnings at certain points. There are a few landmark New Jersey Supreme Court cases on point addressing these issues. First, the taking of a breath test is non-testimonial in nature and is not covered by the privilege against self-incrimination. State v. Stever, 107 N.J. 543 (1987). Because of the non-testimonial nature of the breathalyzer evidence, there is no requirement that Miranda warnings be given advising the offenders of the right to remain silent. Furthermore, there is no right to consult an attorney or to be advised of Miranda warnings prior to submitting to a breathalyzer test. State v. Leavitt, 107 N.J. 534 (1987). Finally, in State v. Macuk, 57 N.J. 1 (1970), the court held that the taking of a breath sample is non-testimonial in nature. Accordingly, a driver accused of driving while under the influence of alcohol has no right to consult an attorney before determining whether to comply with the legal obligation to submit to a breathalyzer test.

As a criminal defense firm, we are frequently contacted by individuals facing serious criminal charges not related to a drinking and driving charge or other motor vehicle offenses. However, we often are asked about the relevance of past DWI convictions on the defendant’s ability to be admitted into the Pre-Trial Intervention Program in New Jersey. Pre-Trial Intervention, also known as PTI, is a diversionary program in New Jersey that basically gives individuals with little or no prior criminal history another chance as long as they stay out of trouble for a certain period of time. What effect does a prior DWI conviction have on an individual’s ability to receive PTI in New Jersey? The short answer is very little effect. In State v. McKeon, 385 N.J. Super 559 (2006), the Appellate Division held that neither a New Jersey drunk driving conviction nor a diversion from the criminal justice system for a drunk driving offense in another jurisdiction acts as a statutory bar to admittance into Pre-Trial Intervention (PTI).

Moreoever, in State v. Negran, 178 N.J. 73 (2003), the court stated that it is clear a past motor vehicle offense is not a criminal event for purposes of PTI evaluation. We recognize, however, that a driving history can have some limited relevance to a PTI application if there is a strong substantive and temporal relationship between the past motor vehicle offenses and the offense with which the PTI applicant has been charged. In such settings, a driving record could demonstrate that a defendant has engaged in a pattern of anti-social behavior as contemplated in N.J.S.A. 2C:43-12e(8).

The doctrine of implied consent means that every individual who drives a vehicle in New Jersey is consenting to a breathalyzer test if they are stopped by a law enforcement officer. The stop must be supported by probable cause and there must be reasonable suspicion that the driver is in fact intoxicated. This doctrine of implied consent was discussed in the New Jersey Supreme Court decision of State v. Wright, 107 N.J. 488 (1987). “The legislative history of the consent and refusal statutes clearly indicates that the Legislature enacted these statutes to facilitate drunk driving investigations. They were designed ‘to enable the enforcing authorities to reach out during the very short window in time during which the scientific evidence of intoxication is available, in order to examine a class whose proximity to the event indicates that the members of that class may have a contribution to make to the search for the truth.” Clearly the public policy indications behind the implied consent doctrine is to aid law enforcement in pursuing and apprehending drunk drivers.

This doctrine has also been discussed at the trial level in New Jersey. The statute in question provides that operators are deemed to have given their consent to the taking of samples of breath for the purpose of making chemical tests to determine the amount of alcohol in the blood. The clear wording of the statute indicates that operators are deemed to consent to give more that one breath sample to determine the amount of alcohol in the blood. Moreover, “a second breath sample is for the benefit of the accused because any disparate results will alert the operator of a potential mechanical malfunction of the machine.” Inaccurate and false readings are discovered and may be disregarded. Those who test under .08% will not be prejudiced by the administration of the second test, “as law enforcement officials will count only the lower of two breathalyzer results, obtained 15 minutes apart, as evidence against the suspect.” State v. White, 253 N.J. Super 490 (1991)

Finally, in State v. Hudes, 128 N.J. Super 589 (1974), the trial court stated “The implied consent statute was conceived and enacted for laudable public purposes and to serve valid state interests, including the avoidance of the use of force in obtaining samples, to assist in obtaining the most reliable evidence of driving while intoxicated, and to reduce the number of death-dealing drunken drivers on the highways by administrative sanctions, including the suspension of drivers’ license privileges.”