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New Jersey DWI

Part 1: Operation

In order to be convicted of DWI, the State must establish, beyond a reasonable doubt, that the driver, (1) operated, (2) a motor vehicle, (3) while under the influence of intoxicated liquor or drugs. In this first part, we will discuss the element of operation.

Operation of a motor vehicle occurs when (1) a person has control of that vehicle; (2) there is intent to drive, along with actions to put the vehicle into motion; and (3) there is the possibility of motion.

Control: There is no statutory definition of control. Rather, it has been defined by case law to occur when one places him/herself in the driver’s seat of a vehicle. The car does not need to be operational, they keys do not need to be in the ignition.

Intent to Drive: A court must be able to infer from the evidence that person intended to move the motor vehicle. Intent can be inferred by physical movements to operate the vehicle, such as putting the key in the ignition, turning on the lights, putting a seatbelt on, adjusting mirrors, etc. Intent, such a person sleeping in a car, even with the keys in the ignition, will NOT always be found merely because a person will operate the motor vehicle at some future date.

Possibility of Motion: In addition to control and intent to operate, the there must be a possibility of movement of the motor vehicle. Possibility of movement does not necessarily require the car be moved by it’s own power. In State v. Jeanette, the court held that it does not matter whether a vehicle is powered by “engine or gravity. In State v. Dannemiller, the court found that a car, which was out of gas on the side of the road, didn’t get there alone.

But Nobody Saw me drive, I was home free!

Operation can be proven in three ways. The most common way to prove operation is through direct observation of the police officer. This occurs when the police officer sees the driving conduct.

The second way proof can be established is through circumstantial evidence. Here the police don’t actually see the driving conduct. Rather, there is some other evidence to infer operation.

Finally, proof can be established by admission to driving.

Operation issues are rare. Tackling the nuanced issues of control, intent and circumstantial evidence can be difficult even for the seasoned lawyer. An operation defense could be overlooked as many defense attorneys tend to focus more on the keys in the ignition, rather than whether in the totality of the circumstances, the defendant intended to drive. Therefore, it is important to hire a New Jersey DWI Lawyer who understands the various components that make up operation and how to raise them at trial. The lawyers at the Hernandez Law Firm, are trained in all aspects of DWI law, undergo refresher training annually to stay current on new case law as-well-as existing case law, and we have the technical training to properly defend DWI and Refusal charges throughout New Jersey.