There are several elements that the State must prove in order to sustain a driving while intoxicated (DWI) case in New Jersey. One of those elements is proof of operation of the motor vehicle. In some cases, proof of operation is very clear as law enforcement pulls the vehicle over and the driver is behind the wheel. However, there are many cases where proof of operation is not so clear including the following:

  • Vehicle is in a parking lot not running but driver is behind the wheel
  • Vehicle is in a parking lot running and driver is behind the wheel but the car is in park
  • Vehicle is in the parking lot running but the driver is sleeping with the seat reclined
  • Vehicle is stopped on a highway with the car running/not running, person is not behind the wheel
  • Vehicle is in a driveway with the car running/not running, person is behind the wheel/not behind the wheel
  • Vehicle is at a rest area with the car running/not running, person is outside the vehicle
  • Several passengers in the vehicle, different versions of who was driving

In one case, State v. Daly (126 N.J. Super 313 (1973)), the Supreme held that the defendant, who was found in an intoxicated condition sitting in the driver’s seat of his car in a tavern parking lot with the motor running one hour and 20 minutes after the closing time of the tavern, and who asserted that he had started the engine to get some heat in the car while he slept, was not shown to be ‘operating’ the car.

As you can see, the State’s burden to prove that the driver operated a motor vehicle while under the influence of alcohol is not always so clear. Our drunk driving attorneys have recently handled several cases in which the DWI charge was dismissed because there were several passengers in the vehicle and there were different stories as to who was the operator of the vehicle. If the law enforcement officer is unable to say for certain who was operating (for instance if the driver and passenger may have switched seats during the stop, etc.) then the State may be unable to prove the DWI charge beyond a reasonable doubt.