Arguments in Opposition to “operating a vehicle in an intoxicated state” under the New Jersey DWI Statute

It has long been recognized that a prosecution for drunken driving is in the nature of a quasi-criminal proceeding and must be conducted so as to respect and safeguard the basic rights normally accorded one accused of a criminal offense. State v. Guerrido, 60 N.J. Super. 505, 510 (App. Div. 1960) (citing State v. McCarthy, 30 N.J. Super. 6, 9-10 (App. Div. 1954)).

N.J.S.A. 39:4-50 states in relevant part:

(a) Except as provided in subsection (g) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant’s blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant’s blood shall be subject:

The State has the burden of proving beyond a reasonable doubt that the defendant was driving while intoxicated. State v. Ebert, 377 N.J. Super. 1, 12 (App. Div. 2005) (citing State v. Grant, 196 N.J. Super. 470, 477 (App. Div. 1984). N.J.S.A. 39:4-50 specifically applies to “a person who operates a motor vehicle while under the influence of intoxicating liquor….” (emphasis added).

“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. Ebert, 377 N.J. Super. at 13 (citing State v. Prociuk, 145 N.J. Super. 570, 573 (Law Div. 1976)).

The three basic ways to prove “operation” are: (1) observation by the arresting officer, (2) evidence of an intent to drive after the moment of arrest, or (3) a confession by the defendant that he was driving. State v. Prociuk, 145 N.J. Super. at 573.

Below are some sample arguments to rebut the state’s argument that the driver was operating a vehicle in an intoxicated state in support of a judgment of dismissal of the DWI charge:

(1) Officer Smith did not observe Mr. Doe sitting behind the wheel of the automobile.

In the majority of cases, the arresting officer observes the defendant driving the vehicle. But that is not the case here. Here, when Officer Smith arrived at the scene, Mr. Doe was sitting on the sidewalk and not behind the wheel of an automobile.

(2) The record is devoid of any proof, much less proof beyond a reasonable doubt, that the police had any probable cause to believe that Mr. Doe was DRIVING AT ALL, much less that he was driving intoxicated.

In another type of case, there are circumstances which justify the presumption of an intent to operate a motor vehicle. See State v. Sweeney, 40 N.J. 359 (1963). Sweeney established the principle that when one in a public place “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,” he “operates” the motor vehicle within the meaning of N.J.S.A. 39:4-50. Id. at 360.

That intent is the principle consideration to determine operation could not be made any clearer than in the case of State v. Daly, 64 N.J. 122 (1973). In Daly, the defendant was arrested while sitting behind the wheel of his parked car in the parking lot of a tavern with the engine running. The defendant told the officer that he was unable to drive home and that he was sitting in the car to keep warm.

The Court found this insufficient evidence of intent to operate and reiterated the requirement that in addition to starting the engine, evidence of “intent to drive” or “move the vehicle” must exist. The Court reasoned that the defendant had the motor running to keep warm, and not with the intent to move the vehicle.

In the cases where the court was able to find an intent to drive, the defendant has always been found sitting behind the wheel of the car. See State v. Sweeney, supra, State v. Daly, supra, State v. Stiene, 203 N.J. Super. 275 (App. Div. 1985).

Unlike the above cases, the record is devoid of any proof, much less proof beyond a reasonable doubt, that the police had any probable cause to believe that Mr. Doe was DRIVING AT ALL, much less intoxicated. While Mr. Doe may have been drinking alcohol, the fact remains that Officer Smith found him sitting on a sidewalk – not in the driver’s seat of a car.

(3) If your client confessed to driving the car …

One basis for a finding of “operation” is by a confession. It has long been recognized that a prosecution for drunken driving is in the nature of a quasi-criminal proceeding and must be conducted so as to respect and safeguard the basic rights normally accorded one accused of a criminal offense. State v. Guerrido, 60 N.J. Super. 505, 510 (App. Div. 1960) (citing State v. McCarthy, 30 N.J. Super. 6, 9-10 (App. Div. 1954)).

And because one of the rights accorded to a person accused of a criminal offense is that the prosecution introduce independent evidence to corroborate the defendant’s alleged confession, the prosecution must introduce evidence that is sufficient to corroborate Mr. Doe’s ambiguous statement that he was operating the automobile.

The DWI charge must be set aside for want of any extrinsic corroboration of Mr. Doe’s statement. A defendant cannot be convicted solely on the basis of a confession without (1) independent proof of the trustworthiness of the confession and (2) independent proof of the injury. i.e., independent proof that indeed he was the driver. State v. Di Frisco, 118 N.J. 253, 271 (1990); State v. Lucas, 30 N.J. 37, 56 (1959)

In State v. Lucas, 30 N.J. 37, 56 (1959), the Court held that when a confession is offered for the truth of its contents,

The State must introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness, plus independent proof of loss or injury [to] afford[] ample protection for the accused and *** to serve the ends of justice in the administration of the criminal law.

As Justice Burling aptly stated in State v. Lucas, “Confessions, like other admissions against interest, stand high in the probative hierarchy of proof. It is for this reason that the law imposes various safeguards designed to assure that the confession is true.” Id. at 57-58.

The quantum of proof – independent of the confession – which the State must introduce before the confession may be considered as evidential was enunciated by the Supreme Court of New Jersey in State v. Lucas, supra:

[on] a motion to direct an acquittal on grounds of lack of corroboration the trial court must determine whether there is any legal evidence, apart from the confession of facts and circumstances, from which the jury might draw an inference that the confession is trustworthy.

[Id. at 62 (emphasis added)]

Here, the State has not presented any evidence to show that Mr. Doe was driving the van, much less that he owned the van by having it registered under his name. Also, the police report mentions nothing of car keys being found on Mr. Doe’s person either before or after he was taken into custody.

Nor is there any other evidence that Mr. Doe was ever in the van, or for that matter had been drinking before operating the van. Other than his ambiguous out-of-court statements, the State’s only evidence corroborating Mr. Doe’s alleged confession is that he was found intoxicated and sitting on a sidewalk, totally meaningless and without any connection to “operation” of the vehicle.

In summary, this Court should direct a judgment of dismissal of the DWI charge on the grounds that the State has failed to introduce independent proof of facts and circumstances that bolster the alleged ambiguous statements of defendant and tend to generate a belief in its trustworthiness.

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