Establishing the Element of Operation for a DWI Offense in NJ


Skilled DWI Defense Attorneys Discuss “Operating” a Motor Vehicle in the Context of a DUI Case

A charge for Driving While Intoxicated (DWI) in New Jersey carries severe penalties that include mandatory ignition interlock, possible license suspension, fines, and even jail time. That’s why judges don’t just automatically render a guilty verdict when a defendant is charged with a DWI. Rather, the prosecution must prove certain elements, and the defendant will have an opportunity to contest the charges. One of the elements of a DWI case is “proof of operation,” which means that you can only be convicted on the charges if it is proven that you were operating the car. While this element is usually not in dispute in most DWI cases, there are instances when the element is unclear and it is debatable whether the person charged was behind the wheel and/or actually operating the motor vehicle while under the influence. If this applies to your drunk driving case, then having a knowledgeable DWI lawyer on your side can make all the difference in combating the charges and avoiding conviction.

The skilled DWI lawyers at our Middlesex County defense firm have been successfully beating DUI cases against our clients for over a decade each in towns such as Edison, New Brunswick, Woodbridge, Old Bridge, East Brunswick, and Piscataway. To discuss how we can help challenge your DWI charges in any of the municipal courts throughout Middlesex County and New Jersey, contact our office for a free consultation. The call to (732) 659-9600 and free case review may be your next step toward a drunk driving case dismissal. To learn more about proof of operation in a DWI case, keep reading.

What is Operation in a DWI Case?

In New Jersey, N.J.S.A. 39:4-50 stipulates that it is against the law to Drive While Intoxicated, and “intoxicated” is understood as having a blood alcohol content (BAC) of .08% or higher. In order to convict you on DWI charges, however, the prosecutor will need to prove all of the elements of the charge beyond a reasonable doubt. This is a high standard of proof, and it means that they must do more than merely show that you were intoxicated and had a BAC above the legal limit. They must also establish that you were operating the vehicle at the time of the offense. Notice the term is “operating,” as opposed to driving, which is very important to understand when you have been charged with a DWI. This is because the state does not need you to be within the confines of driving on a roadway at the moment before your arrest in order to get a conviction in your case.

What Is Required From the Prosecutor When Proving Operation of a Motor Vehicle for a DWI?

There are different situations, circumstances, and types of evidence that may be used to prove the operation element. For instance, if the police officer observed you driving the car, truck, or motorcycle on the roadway before they pulled you over, then this will be pretty conclusive evidence that you were, in fact, operating the motor vehicle. The same is true if video surveillance footage shows you driving the car, such as a video recording taken at a traffic light or toll booth. But what if police investigate the aftermath of a hit-and-run accident and then later arrest you based on eyewitness testimony? What if police find you standing on the side of the road and assume you were the driver of the car? Or what if you are found sitting behind the wheel of the car, but the ignition is turned off? These are all instances in which there may be circumstantial evidence that you were operating the vehicle, and it is in these cases where an experienced attorney may be able to challenge the element in court.

There could also be some question of exactly who was driving the car when there were multiple people inside the car. If these individuals have different stories about who was driving and who was merely a passenger, it could be more difficult for the prosecution to prove that the defendant was operating the vehicle.

Disputing the “Proof of Operation” Element in a DWI Case

When it comes to disputing the operation element in a DUI case, your best chance of success is to get help from an experienced DWI defense lawyer. Depending on the facts and circumstances of your particular drunk driving case – such as the type of evidence used by police and prosecutors – it may be possible to refute the prosecution and either get the charges dismissed or win at trial. There are some key questions that your attorney will ask when evaluating all of the discovery (evidence) in your case.

Was it impossible to move the vehicle?

A fundamental part of the operation element is that the vehicle in question was capable of being moved. Simply put, if the vehicle could not be moved, then there was no risk of the defendant operating it while impaired. Was the car out of gas? Was it missing a tire? Was the vehicle “booted” with a wheel clamp? If you were arrested after law enforcement found you inside or near your car and subsequently determined that you were intoxicated, your attorney may be able to argue that a DWI charge is not appropriate because the vehicle was incapable of being operated.

Was the engine turned on?

Importantly, courts have held that a person can be charged with a DWI even if they did not actually turn on the engine and start the car. For example, if police find a motorist passed out in the driver’s seat and slumped over the wheel, they may have reasonable suspicion that the motorist is intoxicated. The key question then becomes: was the person operating the vehicle? This will be determined by other factors, such as the location of the car keys. Were the keys in the ignition? If so, then the prosecution may argue that the defendant intended to start the car, which would potentially satisfy the operation element of the offense. On the other hand, this also opens the door for the defendant to contest the operation element by showing that he or she did not intend to turn on the engine. If the vehicle was parked at a rest stop, the engine was turned off, the seat was reclined, and the defendant was resting their head on a pillow, it could be argued that the defendant’s intent was to “sleep it off.”

Even if the engine was turned on, it may still be possible to challenge the charges by arguing that the defendant never intended to operate the car. The Supreme Court case of State v. Daly sheds light on this standard. In that case, the defendant was found in the driver’s seat of his car, which was in a tavern parking lot and had the motor running. When a police officer took a closer look inside the vehicle and then asked the defendant to step outside, it became clear that the defendant was intoxicated. However, the lights of the vehicle were turned off when the officer approached the car, and the tavern had been closed for more than an hour. These facts lent credence to the defendant’s argument that he had started the engine so that he could stay warm while waiting for the effects of the alcohol to wear off before he drove home. The Court ultimately ruled in the defendant’s favor because his intent was not to move the vehicle, and intent is required to prove the operation element of a DWI charge.

However, there is no one-size-fits-all answer applicable in cases of unmoving vehicles or when the keys are in the ignition. On the other hand, in the case of State of New Jersey v. John Thompson, the court found that it is possible to convict someone of driving under the influence even if they are sleeping in the vehicle while it is turned on. The key question is: did you intend to drive the car? Do the circumstances point to the operation as the ultimate outcome? These specific cases involving operation in DWI cases hinge on the defendant’s intent. Always, the surrounding circumstances play a critical role in the prosecutor’s case and the defense approach that can be used to invalidate it.

Was the vehicle being driven on the road?

Since the vehicle’s engine does not need to be started for the prosecution to prove the operation element in a DWI case, it stands to reason that neither does the vehicle need to be driven on a roadway for a DWI arrest to be made. In fact, courts have found that a person can be charged with drunk driving regardless of where the motor vehicle was being operated. This means that the prosecution can establish operation for the purpose of proving a DWI charge if the vehicle was moving on a public road, exiting a private parking lot, or even parked in the defendant’s driveway.

Accused of Operating a Motor Vehicle while under the Influence? Talk to a Local DWI Lawyer Now

Contact our law office in Edison, NJ to speak to an experienced New Jersey DWI defense lawyer serving clients throughout Middlesex County. We offer free consultations for anyone with questions about drunk driving cases and defense, including proving and disproving the element of operation. Contact (732) 659-9600 for immediate assistance.

With more than a decade of experience defending clients against criminal charges, founding partner William A. Proetta has successfully handled and tried thousands of cases, from DWI to murder. As a New Jersey native, he has focused his career on helping people in the area where he grew up, serving Middlesex, Ocean, Hudson, and Union counties.