The State must provide Operation of a
Motor Vehicle in DWI
The
State has the burden of proving beyond a reasonable doubt that a defendant was
driving while intoxicated. State v. Grant, 196 N.J. Super. 470, 477
(App. Div. 1984). N.J.S.A. 39:4-50 specifically applies to “a person who
operates a motor vehicle while under the influence of intoxicating liquor . . .
. “ (Emphasis added). The term “operate” must be given broad construction.
State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993). Actual operation is
not required to satisfy the element. Ibid.; State v. Sweeney, 40 N.J. 359,
360-61 (1963). “Operation may be proved by any direct or circumstantial
evidence – as long as it is competent and meets the requisite standards of
proof.” State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992).
“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 that the
defendant had been driving while intoxicated, State v. Mulcahy, 107 N.J. 467,
476 (1987); Morris, supra, 262 N.J. Super. at 419-20; Sweeney, supra, 77 N.J.
Super. 512, 521 (App. Div. 1962); 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. 506 (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.”)
n DWI, state must prove
operation beyond a reasonable doubt. State v Ebert ___ NJ Super. ___ (App. Div., A-4059-03T2
decided March 14, 2005).
1. The state has the burden of proving beyond a reasonable
doubt that a defendant was operating a motor vehicle while intoxicated. N.J.S.A. 39:4-50. "Operation" may
be proved by actual observation of the defendant driving while intoxicated, by
observation of the defendant in or out of the vehicle under circumstances indicating
that the defendant had been driving while intoxicated, or by the defendant's
admission. 2. Defendant's .27 percent BAC, along with the fact that she had
driven to the parking lot of a restaurant on a major state highway, Route 46 in
Denville, was sufficient to sustain her conviction for reckless driving.
The vehicle was not being
operated when the state police arrived at the scene. 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.
http://law.justia.com/cases/new-jersey/appellate-division-unpublished/2009/a1004-08-opn.html
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.
