New Jersey DWI Law; “Intent to move the vehicle” satisfies the statutory requirement of operation

State v. Wardenski   “Intent to move the vehicle” satisfies the statutory requirement of “operation.”

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

In this case the defendant’s vehicle was found running with the keys in the ignition and the defendant observed sitting in the driver’s seat. The car was parked one and a half to two feet way from the curb.  The officer also observed four bottles of vodka three of which were open and half empty in the vehicle.  The defendant lived/resided approximately 1 mile from the location of his vehicle.

The issue in this case is the defendant’s intent to operate the vehicle regardless of whether it was parked or not. The municipal court judge found the state prove beyond a reasonable doubt that the fan and operated the vehicle while intoxicated. The judge relied upon the fact that the keys were in the ignition and the engine was running. The court also relied upon the position of the vehicle together with the defendants in mission that he was coming from his backyard was approximately 1 mile away.  This municipal court judge found there was adequate circumstantial evidence to find the defendant did have the intent to operate his vehicle.  This appellate panel also affirmed the Law Divisions de novo review based on the municipal court’s credibility findings and assessment of the witnesses first hand.  The appellate division also performed a review of the caselaw.  That review found as follows.  To sustain the conviction, the State must prove beyond a reasonable doubt that defendant operated his automobile while under the influence of intoxicating liquor. State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005); State v. Grant, 196 N.J. Super. 470, 477 (App. Div. 1984).2 Determining what constitutes operation has been the subject of many judicial decisions, which guide our review and lead to the conclusion legal operation was shown beyond a reasonable doubt.  The term “operates” as used in N.J.S.A. 39:4-50(a) has been broadly interpreted. State v. Tischio, 107 N.J. 504, 513 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988); State v. Mulcahy, 107 N.J. 467, 478 (1987). “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) (citations omitted). Courts have consistently adopted a practical and broad interpretation of the term “operation” in order to express fully the meaning of the statute. Tischio, supra, 107 N.J. at 513; State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993).  The Supreme Court first discussed the scope of “operation”in State v. Sweeney, 40 N.J. 359, 360-361 (1963). In the defendant’s conviction, the Court held:

[A] person “operates” — or for that matter, “drives” — a motor vehicle under the influence of intoxicating liquor, within the meaning of N.J.S.A. 39:4-50 . . . when, in that condition, he enters a stationary vehicle, on affirming 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.  Evidence of “intent to move the vehicle” satisfies the requirement of operation so that actual movement is not Ibid. statutory required.

Here, there was sufficient circumstantial evidence which supported the finding that defendant operated or intended to operate the vehicle. The judge found defendant either drove to the scene or, as evidenced by defendant being in the driver’s seat with the keys in the ignition and the engine running, intended to operate the vehicle. In sum, given the record before us and our standard of review, we discern no reason to disturb the Law Division judge’s determination.

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