New Jersey Courts Can Convict a Defendant of DWI Even Without Direct Evidence that They Were Driving

New Jersey’s law on driving while intoxicated (DWI) prohibits “operat[ing] a motor vehicle while under the influence” of alcohol or drugs, or with a blood alcohol concentration (BAC) of 0.08 percent or greater. Courts have addressed multiple challenges to the definition of “operate” under this statute. New Jersey courts have held that the key issue is a defendant’s intent to drive, and the Legislature’s objective of preventing drunk driving requires a broad definition of “operate.” The New Jersey Appellate Division reviewed these issues in a recent decision, State v. Cancelosi, in which a defendant challenged the state’s proof that he “operated” his vehicle.

snowThe Appellate Division’s ruling in Cancelosi drew heavily on the Law Division’s ruling affirming the defendant’s conviction. The Law Division judge cited multiple cases addressing the definition of “operating” a vehicle under the DWI statute. Intent to drive is at the center of the “inquiry into operation,” according to several New Jersey Supreme Court rulings. In 1973, State v. Daly held that “evidence of intent to drive or move the vehicle” can prove the “operate” element of the statute. The court held in 1987’s State v. Tischio that “a drunk driver offends the law when he evinces an intent to drive his car.” It also held in that case that “a narrow or literal interpretation would frustrate the fundamental regulatory goals underlying New Jersey’s drunk-driving laws.”

A 1963 New Jersey Supreme Court decision, State v. Sweeney, held that the state does not necessarily have to prove any movement by the vehicle. In that case, police found the defendant in a vehicle on the side of a public road with the engine running. Since then, courts have found that circumstantial evidence is admissible to prove that a defendant “operated” a vehicle. The Appellate Division’s 2005 ruling in State v. Ebert stated that circumstantial evidence may include “observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated.”

The defendant’s appeal in Cancelosi focused exclusively on the question of whether the state proved that he “operated” his vehicle. At the municipal court trial, the only witnesses were the arresting officer and an employee of the bar where the arrest took place. The employee, a bar-back, testified that he observed the defendant’s truck in the bar’s parking lot, with the headlights on and the engine running, at about 3:30 a.m. He came back outside about 45 minutes later and saw that the truck had moved about 25 feet. The employee called 9-1-1 after the defendant did not respond to a knock on the window.

The arresting officer reportedly responded shortly afterward. It seems worth noting here that the court does not mention whether the 9-1-1 dispatcher sent emergency medical assistance. The officer opened the driver’s side door and woke the defendant. According to the court, the defendant responded by “punching the steering wheel…[and] rev[ving] the engine.” The officer removed the defendant from the vehicle and placed him under arrest.

Additional evidence indicated that the defendant smelled of alcohol, performed poorly on field sobriety tests, and had a BAC of 0.24 percent. The municipal court and Law Division held that this was sufficient evidence of DWI, despite a lack of direct evidence of driving. The Appellate Division affirmed.

Evan Levow, an experienced and skilled New Jersey DWI attorney, has practiced in this state for more than two decades. We can help you understand your rights and defend you against the state’s charges. To schedule a free and confidential consultation to discuss your case, contact us today online or at (877) 593-1717.

More Blog Posts:

New Jersey Driver Found Sleeping in His Car Acquitted of DWI After Judge Finds Prosecutors Failed to Prove He Intended to Drive, New Jersey DWI Attorney Blog, July 24, 2016

Driver’s Admission to Drinking Was Enough Probable Cause for Police to Order Breath Testing, According to New Jersey Court, New Jersey DWI Attorney Blog, April 8, 2016

Five Factors Courts May Consider in Determining Whether a Driver Was Impaired in a New Jersey DWI Case, New Jersey DWI Attorney Blog, September 17, 2015

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