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Sunday, October 18, 2015

The state must prove the driver actually operated the vehicle if the police did not see defendant driving

The state must prove the driver actually operated the vehicle if the police did not see defendant driving

We rely on State v. Joshua K. Putz, unpublished opinion, App. Div. Docket No. A-1004-08T4 (May 26, 2009) – DWI conviction reversed.  The arresting officer observed and approached defendant's truck, in which he was sleeping, that was parked with the engine running in a turnaround on private property. The record does not support a finding beyond a reasonable doubt that defendant intended to operate his vehicle at the time of his arrest. 

            The court in Putz wrote:
The Law Division judge on de novo review deferred to the credibility determination by the Municipal Court judge and found the facts from the evidence. He distinguished State v. Daly, 64 N.J. 122, 124 (1973), on the ground that Daly was sleeping in a reclined driver's seat whereas defendant's seat was upright. He also pointed out that defendant did not tell Stefano that he was sleeping but, rather, that he was waiting for someone. He found the fact that the parking brake was not set further weakened defendant's claim that he had no intention of driving his truck. He concluded that the Municipal Court judge properly inferred from the evidence that defendant intended to move his vehicle. Thus, he convicted defendant of DUI and imposed the same sentence. This appeal followed……

Although the judge found as a fact that defendant moved his vehicle, there is simply no record evidence to support that finding as the testimony respecting the movement of the truck related only to what happened to the truck while defendant and Hackett were at Applebee's. Had defendant moved the truck after he returned from Applebee's, Hackett would not have seen it in a different position. More troubling is that any movement of the truck was found at all with the testimony of defendant and Hackett rejected as not credible. Without that testimony, there was no evidence of movement of the truck at all and the conviction based on actual operation cannot be sustained. Thus, we can affirm only if defendant intended to move the vehicle.


[The Supreme court was of State w Sweeney] case was followed by Daly, supra, 64 N.J. 122. There, the defendant was found sitting in the driver's seat of his car with the motor running at 3:20 a.m. in the parking lot of a tavern. Id. at 124. The lights were off and the seat was "slightly reclined." Ibid. (footnote omitted). As the officer shined a light on the defendant, he looked up. Ibid. The officer testified that the defendant had not been asleep at the time. Ibid. The "[defendant told the officer he was sitting in the car to keep warm and intended to drive home in a little while." Ibid. The defendant testified that he had left the tavern between twelve and twelve-thirty in the morning, "he realized he had too much to drink and decided to 'sleep it off.'" Ibid. He got into his car and reclined the seat, and fell asleep. Ibid. He was awakened a few times by the cold and started the engine. Ibid. He was sound asleep when the officer awakened him and he told the officer he had no intention to drive, but was arrested anyway. Id. at 124-25.

Under the facts of this case, the Supreme Court concluded that the mere evidence that the defendant started the engine was not sufficient to sustain a conviction under N.J.S.A. 39:4-50. Daly, supra, 64 N.J. at 125. "[Evidence of intent to drive or move the vehicle at the time must appear." Ibid. (emphasis added). There was no evidence of intent where Daly "'sat behind the wheel with the engine running for a considerable length of time, using the engine only to power the heater in the car but with no intent to move the vehicle.'" State v. Mulch, 107 N.J. 467, 477 (1987) (quoting State v. Stiene, 203 N.J. Super. 275, 278 (App. Div.), certif. denied, 102 N.J. 375 (1985)).


We have recently distilled extant case law regarding operation as follows:

"Operation" may be proved by actual observation of the defendant driving while intoxicated. State v. Prociuk, 145 N.J. Super. 570, 573 (Law Div. 1976); by observation of the defendant in or out of the vehicle under circumstances indicating the defendant had been driving while intoxicated, Mulcahy[, supra,] 107 N.J.[ at] 476 . . . ; [State v. ]Morris, 262 N.J. Super. [413,] 419-20 [(App. Div. 1993)]; . . . Sweeney, [supra,] 77 N.J. Super. [at] 521 . . . ; State v. Witter, 33 N.J. Super. 1, 5-7 (App. Div. 1954); or by defendant's admission, State v. Hanemann, 180 N.J. Super. 544, 547 (App. Div.) (affirming defendant's conviction based upon his admission that he had been driving earlier that night after the police found his empty overturned vehicle on the highway), certif. denied, 88 N.J. 106 (1981); State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974) (affirming defendant's conviction based on his admission to drinking and driving when the police woke him up in his parked car on Interstate 287); State v. Guerrido, 60 N.J. Super. 505, 509 (App. Div. 1960) (affirming defendant's conviction based on the testimony of two witnesses that he was intoxicated and his admission to police that he had been driving after his car was found "buried full length in some shrubbery and lilac bushes["]). [State v. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005).]

Here, defendant's denial of any intention to drive was at least circumstantially corroborated by the testimony of other witnesses whom the judge found credible. The testimony of Stefano alone cannot support a finding beyond a reasonable doubt that defendant intended to operate his vehicle at the time of his arrest, as required by Daly, supra, 64 N.J. at 125, and Prociuk, supra, 145 N.J. Super. at 573. He was in such a deep stupor at 2:00 a.m. when he was arrested that he could not have had any such intent. He certainly made no movements or statements to the officer suggesting that he intended to operate that truck at the moment of arrest. Furthermore, the evidence clearly suggested that he had been soundly asleep for several hours when Stefano finally roused him because he had made no further calls to Gapinski after 12:12 a.m.

The conclusion that defendant intended to move the vehicle cannot have been made with respect to the moment of arrest, but must have been predicated upon his "intent" before he fell asleep. We are not persuaded by the Law Division judge's reliance on the fact that the parking brake was not set, defendant's seat was not reclined, and he did not tell the officer that he was sleeping, but rather that he was waiting for his buddy as sufficient to infer that he had an intent to operate his vehicle at some unspecified point in time. This evidence is simply insufficient to support a reasonable inference of intent to operate given defendant's prolonged stupor. In any event, we have found no reported decision sustaining a conviction based on an intent long since dissipated by the time of arrest and see no valid basis for distinguishing the facts in this case from those found insufficient in Daly, supra, 64 N.J. at 125, and Prociuk, supra, 145 N.J. Super. at 574.