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    Proving DWIs May Be Trickier Than You Realize

    If you have been charged with Driving While Intoxicated, you may already know that the State has the burden of proving each element of that offense beyond a reasonable doubt in order to obtain a DWI conviction against you. Specifically, the DWI statute, N.J.S.A. 39:4-50, requires the State to prove the following two elements: (1) you operated a motor vehicle; (2) while having a blood alcohol concentration of 0.08% or more, or while under the influence of a narcotic, hallucinogenic or habit-producing drug.

    Proving operation, though, is not always as simple as it sounds. For example, if you are intoxicated and in the driver’s seat of a vehicle that is not moving, the State has to prove that you had the “intent” to operate, i.e., drive, the vehicle. Thus, if a person becomes intoxicated and falls asleep in the driver’s seat of his vehicle simply to “sleep off” the intoxication, that person may not be found guilty of DWI.¹ Similarly, if a person is found intoxicated in or near his car that is inoperable, the State may have difficulty proving operation.²

    On the other hand, if the evidence shows the person was driving while intoxicated prior to being discovered in the driver’s seat of an unmoving or inoperable vehicle, then the State may be able to prove operation. For example, where the evidence shows a driver had been drinking, driving in the opposite direction from his destination, and was found passed out in the driver’s seat with his foot on the brake, the State has evidence of intent to drive or move the vehicle, and thus can prove operation.³ The State may also prove operation where the person was intoxicated, behind the driver’s seat, and was prevented from putting his keys in the ignition by the arresting officer. In that case, the person’s control over the car and physical movements to put the car into motion is sufficient to show intent to operate the vehicle while intoxicated.4

    The takeaway here is that proving operation in DWI cases is not always straightforward; it sometimes involves a detailed and fact-intensive analysis. Given the significant, expensive, and long-lasting impact of a DWI conviction, you would be well advised to seek the advice of counsel if you have been charged with a DWI. If you or your family members have been charged with a DWI, don’t hesitate to Attorneys Hartman for advice and assistance.

    1. See State v. Daly, 64 N.J. 122 (1973)
    2. See State v. DiFrancisco, (Law Div. 1988)
    3. See State v. Utate, 2012 N.J. Super. Unpub. LEXIS 2595, 2012 WL 5932976 (App. Div. 2012)
    4. See State v. Mulcahy, 107 N.J. 467, 478-79 (1987) (noting a person begins to operate the instant he begins to manipulate the machinery of the vehicle for the purpose of putting the car in motion, and [] ‘operates’ refers to the actual physical handling of the controls of a vehicle”).


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