The arrest of a man found sleeping in his car on a New Jersey road for alleged driving while intoxicated (DWI) raises a rather obvious question: can police arrest someone for DWI if they did not actually see the person driving? New Jersey’s DWI statute, which prohibits “operat[ing] a vehicle” while intoxicated or under the influence of illegal drugs, does not actually require an arresting officer, or anyone else, to witness a suspect driving. It does, however, require other evidence to establish that a person had been driving, or that he or she intended to drive and was about to do so, while under the influence of alcohol or drugs.
Police in North Plainfield, New Jersey reportedly responded to a report of someone sleeping in his car early one morning in late September 2014. Officers found the car parked on the side of a road. They claimed that they had to shout to wake the man up, and that he told them he thought he was in a parking lot. Two children were also reportedly in the car with the man. His blood alcohol content (BAC) was allegedly 0.13 percent, which resulted in charges of both DWI and child endangerment. The latter charge depends on the state’s ability to prove the former. Since no witnesses have claimed to have seen the man driving, this will depend on whether the state can prove beyond a reasonable doubt, based on the circumstances, that the man had operated the vehicle.
Mr. Uquillas-Tapia has several defenses to this situation.