The state must prove the driver actually operated the vehicle if the police did not see defendant driving
We rely on State
v. Joshua K. Putz, unpublished opinion, App. Div. Docket No. A-1004-08T4 (May
26, 2009) – DWI conviction reversed. The arresting officer observed and
approached defendant's truck, in which he was sleeping, that was parked with
the engine running in a turnaround on private property. The record does not
support a finding beyond a reasonable doubt that defendant intended to operate
his vehicle at the time of his arrest.
The court in Putz wrote:
The Law Division judge on
de novo review deferred to the credibility determination by the Municipal Court
judge and found the facts from the evidence. He distinguished State v. Daly, 64
N.J. 122, 124 (1973), on the ground that Daly was sleeping in a reclined
driver's seat whereas defendant's seat was upright. He also pointed out that
defendant did not tell Stefano that he was sleeping but, rather, that he was
waiting for someone. He found the fact that the parking brake was not set
further weakened defendant's claim that he had no intention of driving his
truck. He concluded that the Municipal Court judge properly inferred from the
evidence that defendant intended to move his vehicle. Thus, he convicted
defendant of DUI and imposed the same sentence. This appeal followed……
“Although the judge found as a
fact that defendant moved his vehicle, there is simply no record evidence to
support that finding as the testimony respecting the movement of the truck
related only to what happened to the truck while defendant and Hackett were at
Applebee's. Had defendant moved the truck after he returned from Applebee's,
Hackett would not have seen it in a different position. More troubling is that
any movement of the truck was found at all with the testimony of defendant and
Hackett rejected as not credible. Without that testimony, there was no evidence
of movement of the truck at all and the conviction based on actual operation
cannot be sustained. Thus, we can affirm only if defendant intended to move the
vehicle.
……….
[The Supreme
court was of State w Sweeney] case was followed by Daly, supra, 64 N.J.
122. There, the defendant was found sitting in the driver's seat of his car
with the motor running at 3:20 a.m. in the parking lot of a tavern. Id. at 124.
The lights were off and the seat was "slightly reclined." Ibid.
(footnote omitted). As the officer shined a light on the defendant, he looked
up. Ibid. The officer testified that the defendant had not been asleep at the
time. Ibid. The "[defendant told the officer he was sitting in the car to
keep warm and intended to drive home in a little while." Ibid. The
defendant testified that he had left the tavern between twelve and
twelve-thirty in the morning, "he realized he had too much to drink and
decided to 'sleep it off.'" Ibid. He got into his car and reclined the
seat, and fell asleep. Ibid. He was awakened a few times by the cold and
started the engine. Ibid. He was sound asleep when the officer awakened him and
he told the officer he had no intention to drive, but was arrested anyway. Id.
at 124-25.
Under the facts of this case,
the Supreme Court concluded that the mere evidence that the defendant started
the engine was not sufficient to sustain a conviction under N.J.S.A. 39:4-50.
Daly, supra, 64 N.J. at 125. "[Evidence of intent to drive or move the
vehicle at the time must appear." Ibid. (emphasis added). There was no
evidence of intent where Daly "'sat behind the wheel with the engine
running for a considerable length of time, using the engine only to power the
heater in the car but with no intent to move the vehicle.'" State v. Mulch,
107 N.J. 467, 477 (1987) (quoting State v. Stiene, 203 N.J. Super. 275, 278
(App. Div.), certif. denied, 102 N.J. 375 (1985)).
………
We have
recently distilled extant case law regarding operation as follows:
"Operation"
may be proved by actual observation of the defendant driving while intoxicated.
State v. Prociuk, 145 N.J. Super. 570, 573 (Law Div. 1976); by observation of
the defendant in or out of the vehicle under circumstances indicating the
defendant had been driving while intoxicated, Mulcahy[, supra,] 107 N.J.[ at]
476 . . . ; [State v. ]Morris, 262 N.J. Super. [413,] 419-20 [(App. Div.
1993)]; . . . Sweeney, [supra,] 77 N.J. Super. [at] 521 . . . ; State v.
Witter, 33 N.J. Super. 1, 5-7 (App. Div. 1954); or by defendant's admission,
State v. Hanemann, 180 N.J. Super. 544, 547 (App. Div.) (affirming defendant's
conviction based upon his admission that he had been driving earlier that night
after the police found his empty overturned vehicle on the highway), certif.
denied, 88 N.J. 106 (1981); State v. Dickens, 130 N.J. Super. 73, 78 (App. Div.
1974) (affirming defendant's conviction based on his admission to drinking and
driving when the police woke him up in his parked car on Interstate 287); State
v. Guerrido, 60 N.J. Super. 505, 509 (App. Div. 1960) (affirming defendant's
conviction based on the testimony of two witnesses that he was intoxicated and
his admission to police that he had been driving after his car was found
"buried full length in some shrubbery and lilac bushes["]). [State v.
Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005).]
Here, defendant's
denial of any intention to drive was at least circumstantially corroborated by
the testimony of other witnesses whom the judge found credible. The testimony
of Stefano alone cannot support a finding beyond a reasonable doubt that
defendant intended to operate his vehicle at the time of his arrest, as
required by Daly, supra, 64 N.J. at 125, and Prociuk, supra, 145 N.J. Super. at
573. He was in such a deep stupor at 2:00 a.m. when he was arrested that he
could not have had any such intent. He certainly made no movements or
statements to the officer suggesting that he intended to operate that truck at
the moment of arrest. Furthermore, the evidence clearly suggested that he had
been soundly asleep for several hours when Stefano finally roused him because
he had made no further calls to Gapinski after 12:12 a.m.
The
conclusion that defendant intended to move the vehicle cannot have been made
with respect to the moment of arrest, but must have been predicated upon his
"intent" before he fell asleep. We are not persuaded by the Law
Division judge's reliance on the fact that the parking brake was not set,
defendant's seat was not reclined, and he did not tell the officer that he was
sleeping, but rather that he was waiting for his buddy as sufficient to infer
that he had an intent to operate his vehicle at some unspecified point in time.
This evidence is simply insufficient to support a reasonable inference of
intent to operate given defendant's prolonged stupor. In any event, we have
found no reported decision sustaining a conviction based on an intent long
since dissipated by the time of arrest and see no valid basis for
distinguishing the facts in this case from those found insufficient in Daly,
supra, 64 N.J. at 125, and Prociuk, supra, 145 N.J. Super. at 574.
Reversed.
