You do not need to be in your car to be convicted of a DWI in New Jersey

State v. John Thompson New Jersey Appellate Division   (Approved for Publication February 10, 20200

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.


In appealing his convictions for operating a vehicle while under the N.J.S.A. 39:4-50.2, defendant argues that the evidence does not support the statutory requirement of “operat[ing]” the vehicle when the record reveals he was found sleeping behind the wheel with the engine running. In affirming, we reject this argument because it is inconsistent with the well-established manner in which “operation” has been defined. Defendant was convicted by a municipal court and again, via municipal appeal, by the Law Division of violating both N.J.S.A. 39:4-50(a) and N.J.S.A. 39:4-50.2. A two-year license suspension was imposed. In appealing to u,s defendant argues: State v. Tischio, 107 N.J. 504, 513-14 (1987); State v. Mulcahy, 107 N.J. 467, 478 (1987); State v. Wright, 107 N.J. 488, 494-503 (1987); State v. Sweeney, 40 N.J. 359, 360-61 (1963), and encompasses more than just “driving” a vehicle. Operation, for example, includes sitting or sleeping in a vehicle, with the engine running, even when the vehicle isn’t in motion. Indeed, the Supreme Court has recognized that “operation” may be found from evidence that would reveal “a defendant’s intent to operate a motor vehicle.” Tischio, 107 N.J. at 513. Thus an intoxicated person could be found guilty of violating N.J.S.A. 39:4-50(a), when running the engine without moving the vehicle, as here, or by moving or attempting to move the vehicle without running its engine, see State v. Stiene, 203 N.J. Super. 275, 279 (App. Div. 1985).

The public policy arguments in favor of this broadly written opinion:

“ As the Supreme Court held in Tischio – and it apparently bears repeating – “[w]e are thus strongly impelled to construe [the statute] flexibly, pragmatically and purposefully to effectuate the legislative goals of the drunk driving laws,” 107 N.J. at 514, which, of course, are to rid our roadways of the scourge of drunk drivers, id. at 512. See also Mulcahy, 107 N.J. at 479 (recognizing, in quoting State v. Grant, 196 N.J. Super. 470, 476 (App. Div. 1984), that the drunk driver remains “one of the chief instrumentalities of human catastrophe”). This well-established legislative goal would be frustrated if we were to seek or encourage irrelevant distinctions between what occurred here and what the Supreme Court and this court has already found to be “operation” within the meaning of N.J.S.A. 39:4-50(a). In so holding, we readily acknowledge this opinion expresses nothing new. We have been driven to publish because of the extraordinary number of times the court has recently faced this precise issue. Seven other times within the last twelve months – each time by unpublished opinion – we have considered whether an intoxicated person, sleeping behind the wheel of a parked car with its engine running, can be convicted of N.J.S.A. 39:4-50(a).3 For the benefit of the public, as well as the bench and bar, we deem it appropriate to express our holding in a published opinion. See R. 1:36-2(d)(6)

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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