Was the Vehicle “Operated” Prior to Your NJ DWI Arrest?

In a New Jersey DWI case, the prosecutor must prove the basic elements of the offense. The simplest of those elements is whether the individual arrested actually operated the motor vehicle.

Often, New Jersey DWI arrests are made as a result of tip call, or someone calling into the police department reporting an erratic driver. The caller will sometimes give the license plate number of the vehicle, which can then be traced to the owner’s residence. If the police then locate the car in the driveway of the residence, without that driver in the vehicle, there is a question as to who operated the vehicle. Unless the caller can identify the driver, or if the driver admits to operating the vehicle, the state will have a difficult, if not impossible time, in establishing who operated the vehicle.

Even if operation is established, the state must still prove that the operator drove the vehicle while intoxicated. Depending on how long the vehicle was stationary at the residence, it may be difficult for the state to establish that the driver did not drink alcohol once the motorist arrived at the residence.

Another issue of operation occurs when a police officer comes upon a vehicle on the side of the road or in a parking lot, where the driver is asleep behind the wheel. If the vehicle is on the side of a highway or a road where there are no residences or businesses, an operation defense will not likely be successful. This is because the law presumes that when the vehicle was operated to that location, unless there is evidence to the contrary, it is presumed that the driver was intoxicated while operating. A defense to that situation would be where the driver was drinking after operating the vehicle. This would generally require proof of that, which could include bottles of alcohol present in or around the vehicle at the time of arrest.

If the police officer has contact with the driver of a vehicle in a parking lot of a bar, restaurant, or other business, and that driver has been asleep at that location, there may be a defense to operation if the state cannot show that the driver drove to that location intoxicated, or had the intent to operate the vehicle from that location while intoxicated. For example, if the driver had come out of a bar, and decided to sleep before operating the vehicle, it cannot be determined whether the driver intended to operate the motor vehicle while intoxicated.

There are many issues to defend a New Jersey DWI arrest with. It is critical that you consult with a qualified New Jersey DWI lawyer to determine the best way to handle your defense. Please contact us at Levow & Associates for a free consultation.