Intent to Drive and New Jersey DWI Law

State Of New Jersey v. Donna Ebert

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

This is a brief summary of a case that occurred in 2002. The question of this case is the intent to drive by the defendant. If you have been charged with a DUI but you were not driving or you fell asleep on the side of the road please contact Hark&Hark Law Offices at (866) 427-5529. We can help you get out of the DUI you were charged with.

At midnight on Friday, September 13, 2002, Officer Scott Welsch responded to a report of a stolen vehicle. The call was coming from the parking lot at Charlie Browns restaurant in Denville, NJ. The officer met with the manager of the restaurant and defendant who stated, “she could not find her BMW and believed it was stolen.” As the officer and defendant continued the conversation defendant was slurring her words and was extremely nervous. Eventually, Officer Welsch smelled alcohol on her breath. The officer asked defendant if she had anything to drink tonight. Mrs. Ebert testified she had not had anything to drink at Charlie Browns. However, she felt she was not okay to drive and was in the parking lot to sleep off what she had drank.  In the meantime the restaurant manager found defendant’s car on the other side of the building parked in the middle of two parking spots. Officer Welsch believed Mrs. Ebert had driven to the parking lot under the influence with all the evidence he was presented with: slurred speech, double parked car, the smell of alcohol odor, and defendant had the keys to the car. During the field sobriety test, defendant stated, “her brother was with her and drove the car.” Shortly after claiming this she had admitted to lying about her brother being at the bar with her. She did not want to be charged with a DWI. After failing the field sobriety test defendant was arrested.

Before trial, defendant requested a hearing on the issues if she was operating  a vehicle and if her statements to the officer prior to her arrest should be suppressed. The hearing occurred on December 10, 2002, the court determined the officer’s testimony was credible and the state had met its burden to prove defendant had operated her car under the influence. At trial, the defendant again moved to suppress her statements made to the officer prior to her arrest.  This was denied. Defendant testified after work she was going to drink and meet up with her friends, at 5:30 p.m. she parked her car at Charlie Browns, where she was to meet her friend Dana Spagnola. They left and eventually, Dana drove Mrs. Ebert back to Charlie Browns and defendant proceeded to call her husband. Defendant ended up entering the bar to use a phone and Mrs. Spagnola left at this point. Mrs. Ebert testified she did not want to get her friends involved in this case so she did not use them as witnesses. The Judge found Mrs. Ebert’s testimony to be not credible or believable. The Judge determined, defendant admitted she had been drinking, she changed her story in order to not be charged with a DWI and did not bring any witnesses to say they drove her to the parking lot. Defendant was found guilty of DWI and reckless driving.

On appeal , Mrs. Ebert argues her Miranda rights were violated by the admission into evidence of her statements to the police officer. She was in custody from her first encounter with the officer because he suspected she was drunk and should have provided her with the Miranda warnings. The Appellate Court determined the Miranda warming’s are only required when person is subject to custodial interrogation. In this specific case, this does not apply and the Miranda warnings  are not required for a DWI prior to the field sobriety test.  Mrs. Ebert’s other argument included the state did not prove beyond a reasonable doubt defendant was operating a motor vehicle in an intoxicated state no one observed her drive. The Appellate Court determined in this case the defendant’s admission to the officer, the position the vehicle was parked, and her incredibility in testimony support the finding that defendant drove to Charlie Browns intoxicated. Defendant’s fourth argument is the municipal judge improperly shifted the burden of proof when there was no witness Dana Spagnola. The Appellate Court disagreed and stated failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raise a natural inference that the party so failing fears exposure of those facts would be unfavorable. Defendant’s final argument argues there was insufficient proof to support her conviction for reckless driving, since there was no indication of speed at which she was traveling for that she had endangered people or property. The Appellate court found intoxication in combination with other evidence stand alone may satisfy the recklessness element. The defendant’s .27 BAC and route she traveled to get to the restaurant is sufficient to sustain her conviction for reckless driving. The court affirmed the decision.

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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