The Element of Operation (vs. Driving) in A NJ DWI Prosecution

N.J.S.A. 39:4-50(a), the DWI Statute, prohibits “a person who operates a motor vehicle while under the influence . . . .” The statute does not define “operation.” Case law has over the years, defined operation. Case law, distinguishable from statutory law, is a reported decision from a higher court that interprets statutory law.

New Jersey Courts (case law) have construed operation as it applies to the DWI Statute broadly broader than “driving” in the classic sense. In other words, the State in a NJ DWI prosecution does not have to present a witness who saw the defendant “driving” to prove “operation.”  Generally, there are three ways for the State to prove operation in a NJ DWI prosecution: (1) observation of a defendant driving, (2) defendant’s admission (of driving), and (3) circumstantial evidence that the defendant drove the vehicle to the place where found, or that the defendant intended to move the vehicle.

The State is required to prove each element of their case, including the element of operation, beyond a reasonable doubt. This burden never shifts (to the defendant). Many defendants believe that they must disprove the State’s version of a case. This mindset is wholly inaccurate and can lead to an ineffectual defense where for example, a defendant takes the stand when the State has not even met their legal burden of proof.

The third method of proof above (that the defendant drove or intended to drive) often presents fact-patterns that fall within the proverbial gray area of the law, and are thorny for courts, the prosecution, and defense. These cases are very fact-sensitive. In other words, whether the State can prove operation is highly contingent on the particular set of facts. For example, if a defendant is intoxicated behind the wheel of a car in a position other than a normal position for parking (e.g. on the shoulder of the Parkway, or in the middle of a roadway), courts have found sufficient circumstantial evidence of operation. Courts have also found operation where a defendant puts the keys in the ignition and shows evidence of an intent to move the vehicle.  Conversely, Courts have ruled against the state and for the defense where the evidence does not establish intent to drive, but something else, like simply keeping the engine warm while sitting in the car. Courts have found insufficient evidence of operation where the defendant was behind the wheel of a car parked lawfully in a driveway sleeping with the engine off (because for example, a reasonable alternative explanation is that the defendant could have simply come out of the house to “sleep it off” with no intent to drive). Courts have also found insufficient proof of operation where the defendant was behind the wheel of a parked car but did not have a “present intent” to drive.

Cases involving cars that are not “moving” (i.e. driven in the classic sense) are extremely fact-sensitive. Again, the State (the prosecution) has the constitutional burden to prove every element of a DWI offense, including “operation”, beyond a reasonable doubt. A not guilty finding (or a dismissal) is possible if these cases are handled and analyzed properly.

Morality Of NJ DWI Defense Lawyers

Recently, a prosecutor who I do not know well took a jab at me, a passive aggressive innuendo, questioning the morality of those who defend drunk drivers who “go out there and kill people.” I then thought of another prosecutor who once questioned the ethics of defense lawyers. He used his religion to support his position that defense lawyers lack a spiritual compass, and prosecutors are morally superior.  This made me ponder and even question the morality defense lawyers and my chosen profession. I ultimately came to my senses.

First, regarding religion, the major Abrahamic religions (Judaism, Christianity, and Islam) regard justice as an important virtue. All man/woman is imperfect. I doubt, therefore, that any interpretation of religion would favor allowing the police and prosecutor alone to use their power without restraint. Some people know and quote religion and use it to judge others. Their actions are in deep contrast to religious teachings. In other words, they talk the talk but do not walk the walk. As my father once said, look to a person’s actions, not their words.

I say to anyone using religion to question the morality of defense lawyers, stop being so “pious.” Charles Reade, a non-practicing English Lawyer (June 1814 – April 1884) aptly defined being “pious” as “marked by conspicuous religiosity a hypocrite—a thing all pious words and uncharitable deeds.” I have witnessed injustice and moral decay in the system at times, from prosecutors, and particularly the “pious” one who once questioned my morals.

Second, I thought of the alternative that my colleagues would prefer, a system without defense lawyers. The police and prosecutor can determine who is guilty because they are morally superior. There would be no need for proof beyond a reasonable doubt, fair and impartial judges or the due process (fundamentally fair process) of law. What can possibly go wrong with allowing the police and prosecutor to dispense their powers as they see fit? The police and prosecutor have immense power. Defense lawyers are necessary to assure that this power is dispensed justly.

Last, I try not to be “pious” (a hypocrite) although it is hard (even impossible) for me not to judge some people. All humans are imperfect although for me, manipulative people, men who abuse/assault women, people who hurt kids are some on my list of people who I find it hard not to judge. Most clients charged with DWI, are in a dark period, many feeling alone, depressed, anxious, ashamed and embarrassed. For my colleagues on the “other side” of the system, I say, we are all part of the same system and on “one side” of justice. I am happy to say that in my 26-years as a defense lawyer, I respect the vast majority of prosecutors, police officers and judges who are honorable and straightforward. Also, remember the words of Abraham Lincoln; “I have always found that mercy bears richer fruits than strict justice.”

Comments, Questions: Greggory M. Marootian, Esq. – gmmesq@aol.com