Proving Operation of a Motor Vehicle for a DUI and DWI Conviction

Were you actually driving when the police arrived? Although the existing case law has a very liberal definition of operation, our firm has wom many DWI cases based on an operation defense. If you have questions about whether or not the state can satisfy its burden to prove that you operated your vehicle beyond a reasonable doubt, then you can contact us for a free consultation.

The State must prove for a DUI and DWI charges pursuant to N.J.S.A. 39:4-50a that the driver was engaged in the operation of a motor vehicle. It is obvious that if an officer observes you actually driving or if you voluntarily admit to driving the vehicle then operation is not at issue. In all other instances operation should be analyzed to determine if the State can prove their case.

While the statutory law in NJ does not provide a clear cut definition for operation of a motor vehicle, NJ case law has provided additional guidance. Operation is more expansive than actually driving the vehicle. In order to establish operation the court must find the driver had control of the vehicle, had a present intent to cause the vehicle to move, engaged in an action to further or initiate the movement of the vehicle and the vehicle had the ability to move.

The NJ Supreme Court in State v. Mulcahy, 107 NJ 467, 479 (1987) analyzed the definition of operation in the context of drink driving stating that it is broader than in the context of a moving violation wherein the driver must actually be driving the vehicle. "The term 'operate,'it has been held, includes merely controlling the vehicle and is intended to forbid persons from doing anything with regard to the mechanism of a motor vehicle, whether it has any effect on the engine or not…..." Mulcahy 107 N.J. at 479 citing to Annotation, "What Constitutes Driving, Operating, or Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute or Ordinance," 93 A.L.R.3d 7, 16-17 (1979) (footnotes omitted).

The element of control of the motor vehicle can be established if the driver sits in the driver seat according to State v. Mulcahy, 107 NJ 467, 479 (1987). In Mulcahy, the driver had left a bar and was observed staggering to his vehicle which was illegally parked on a sidewalk. The officers witnessed the driver attempt to put his keys in the ignition when one of officer pulled the keys from his hand before he could start the car. This action by the driver established not only control but also the other elements for operation. Intent and action were satisfied by the driver attempting to put the key in the ignition.

The State must also prove the driver had an intent to drive the vehicle at that time. An important NJ case found that a driver who had been purposefully sleeping in his car to sleep off his intoxication did not have a present intent to drive. The driver had been in the car, with the seat reclined for over 1 hour and 20 minutes after a tavern had closed and he was intermittently starting the car to stay warm. State v. Daly, 64 N.J. 122, (1973). The court acknowledged the State's concern that once the car is started the driver could intentionally or accidentally move the car and cause an accident, but the court still held these facts could not establish a present intent to drive.

Caselaw has also shown that a vehicle without keys or even without the capability to travel long distances can still be a basis for a finding of operation. In State v. Jeanette, 172 N.J. Super. 587 (Law. Div. 1980) the defendant was coasting on the road on his motorcycle without keys because his girlfriend took them away as he was intoxicated. The court found he was operating the motor vehicle regardless of whether it was operated by the engine or gravity and the public must be protected. Jeanette, 172 N.J.Super. at 592. In See State v. Derby, 256 N.J. Super. 702 (Law Div. 1992) the driver was attempting to steer a car that his mother was trying to push with a car from behind because his car had run out of gas, likely had a dead battery and a gear shifting issue. Even though the vehicle did not move he was found guilty of operating the vehicle because he was on a public road, behind the steering wheel and intended to move the vehicle. However cases have held that if a vehicle is inoperable, such as missing an engine, the element of operation is not met regardless of the intent of the driver.

There are many issues important to the analysis of the element of operation. I am an experienced municipal court lawyer and I know operation must be scrutinized to determine if this can be the basis to have your charges downgraded or dismissed.

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