State v. Fagg | New Jersey Appellate Division unpublished Decision: Filed: 2021-01-08

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

Michale Fagg appeals his conviction of driving while intoxicated DWI. At around 1:30 AM, witness Jill Muriithi noticed that a vehicle was parked at the entrance of the parking lot of her apartment complex. The vehicle was just sitting there with its lights on. She had to pull her vehicle up and over a curb to get into her parking spot. While passing the car, she saw a man asleep at the wheel. She then went into her apartment and called the police about 15-20 minutes later. While on the phone with dispatch, she saw that the car was in a different position and saw the driver stumble around the car and urinate in the bushes. Officer Chudy came out to investigate the scene. Officer Chudy observed the scene as the witness described. A vehicle not parked in a parking spot blocking the flow of traffic and lights on. When he approached the window, he saw the defendant slumped over and doing something in his lap. The defendant rambled and repeated to the officer that he was at a coworker’s party and just came to his car to charge his phone and warm-up. He said not planning on driving the car. After asking the defendant to step out of the vehicle Officer Chudy administered three different sobriety tests. The defendant failed the first two tests and could not finish the third after falling onto his vehicle. The defendant was then arrested and charged with DWI, a parking offense, and public urination.

At trial, before the Municipal Court, the State presented officer Chudy and witness Jill Muriithi to testify. Without objection, the judge ruled that both witnesses were credible. The defense also presented two witnesses, two guests of the party the defendant was attending that night. Both witnesses cooperated with the defendant’s story that he went to his vehicle to charge his cell phone. The defendant claims that the State failed to prove the car was in operation beyond a reasonable doubt. The judge disagreed. Since the witness testimony was credible, there is beyond a reasonable doubt the car was operated, because she saw the vehicle’s position changed. The defendant has entered a conditional plea to DWI and public urination, the State was willing to drop the illegal parking. The defendant also had to attend 12 hours in the Intoxicated Drivers Resource center, pay a fine, and a three-month driver’s license suspension, which the judge was willing to put off leading up to appeal.

The defendant appealed his conviction to the Law Division court, and the court conducted their trial. The defendant again argued that the State failed to prove that he operated the vehicle beyond a reasonable doubt. The judge disagreed. The judge gave him the same sentence accept he revoked the defendant’s driver’s license pending his next appeal.

At appeal, the defendant argues the same point: The trial court erred in convicting the appellant because the state has not proven operation beyond a reasonable doubt. The term “operation” is broad and is not restricted to driving; operation includes intending to drive. The appellate court agreed with the two lower courts. The appellate court ruled that there was beyond a reasonable doubt that the defendant operated the vehicle. The 911 call and the surrounding circumstances described by Officer Chudy and Muriithi provided more than enough evidence of the defendant’s guilt.

DWI cases can sometimes be complicated because the defendant was not in a state of mind to recall events correctly. In this case, the defendant does not recall moving the car, but he remembers sitting in the driver’s seat and turning the car on. The eyewitness made it easier for the court to convict the defendant of his crime. However, even if the defendant did not move the vehicle, and there was no witness, there is still reason to believe that he was intending to operate the vehicle. When intoxicated, your decision-making skills are impaired, if Officer Chudy did not show up when he did, there is a chance defendant could have driven away and put himself in danger and others. That is enough for conviction. Under no circumstances should a person that has been drinking get behind the wheel. It is a danger to yourself and others.

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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