One of the best defenses and most overlooked defenses to a DWI charge is to contest the operation of the vehicle. In today’s age, the police are writing DWI charges as fast as them can. Many DWI charges would never have been issued 25 to 30 years ago. Unfortunately, the definition of “operation” has greatly expanded in conjunction with New Jersey public policy to combat the perils of DWI. It does not take much effort for a driver to be considered operating a motor vehicle.
The current state of the law requires for distinct facts to prove operation;
1. Control of the motor vehicle;
2. An intention to cause the motor vehicle to move;
3. Some action taken to place the motor vehicle in motion; and
4. The possibility of motion by the motor vehicle.
An important factor is that the driver must have control over the vehicle. In the current climate, when a defendant enters a motor vehicle and sits in the driver’s seat, he or she is in control of the motor vehicle.
It is important to note that the case law defining operation does not require the physical movement of the motor vehicle. Instead, the foundation of operation is based upon an intention by the driver to put the motor vehicle in motion. See, State v. Sweeney, 40 N.J. 359 (1963). In the Sweeney case, the driver entered the vehicle and placed the keys in the ignition and started the engine. The current state of New Jersey law is very liberal in determining “operation” in a DWI case. All that is required is an action taken by the defendant calculated to place the motor vehicle over which he or she has control or motion.
There are three standard ways to prove operation of a motor vehicle. First, there may be direct evidence of operation. This will come from the observations of the police officer or the witnesses who saw the defendant operate the vehicle. The second method is through circumstantial evidence. This type of evidence constitutes the facts and circumstances related to the defendant’s situation and the police find him or her create an inference that the vehicle was operated and that the defendant was the operator. The third way of providing operation by the admission of the defendant. Frequently, defendants who have been driving will make admissions to the police before they are arrested.
In summary, there are many scenarios wherein you may possibly be able to beat a DWI based on the lack of proof of operation. Sometimes, you may have had no intention to drive, but instead you simply wanted to sleep in your vehicle after a hard night’s out. You can’t overlook the prosecution’s duty to prove operation. It is important to note that you can use the prosecution’s lack of evidence to prove operation as leverage to get a plea offer to a first tier DWI. In a first tier DWI you only lose your license 3 to 7 months, whereas in a second tier DWI you lose your license for 7 months to 12 months. In my experience you get the “most bang for your buck” by using the proof of operation defense to have the DWI charge downgraded to a first tier charge.
If you are going to use a proof of operation defense then you have to review the case law. Each DWI case is fact sensitive, and each different fact could turn the case in your favor or against you. It is important to review the case law on the proof of operation;
State v. Daly, 64 N.J. 122 (1973). The defendant was convicted of DWI. On appeal, the conviction was reversed. The case was then appealed to the New Jersey Supreme Court. On appeal, the New Jersey Supreme Court held that the defendant who was found in an intoxicated condition sitting in the driver’ seat of his car in the tavern parking lot with the motor running one hour and 2o minutes after the closing time of the tavern, and who asserted that he had started the engine to get some heat in the case while he splept, was not shown to be “operating” the car.
State v. Mulcahy, 107 N.J. 467 (1987). Here, the defendant was convicted in the Cresskill Municipal Court for DWI. On appeal to the Bergen County Superior court, the judge affirmed in part and reversed in part. He then appealed. Eventually the case went up to the New Jersey Supreme Court. The Supreme Court held that the police officers, who saw the defendant, who was drunk, stagger out of the tavern into the case that was illegally parked on the sidewalk, could arrest the defendant for purposes of submission to sobriety test(s) when the defendant started to put the keys in the ignition.
State v. Stiene, 203 N.J. Super. 275 (1985). Here, the defendant was convicted for DWI in the Superior Court. He appealed. On appeal the court held that the defendant who held the gear shift lever of an automobile between the “park” and “reverse” positions while his mother attempted to push the vehicle, constituted “operation” of the vehicle within the meaning of the DWI statute.