The state of New Jersey, like some other states, requires that there be an 'intent to drive' proven before a defendant can be found guilty of 'Operating' while DWI when the vehicle is not in motion. “ ‘Operation may be proved by any direct or circumstantial evidence—as long as it is competent and meets the requisite standards of proof.’ “ Ibid. (quoting State v. George, 257 N.J.Super. 493, 497 (App.Div.1992)). The Court has explained that when an individual is sitting “in the driver's seat, that person is in control of the car and an intention to drive the vehicle, combined with physical movements to put the car in motion, constitutes operation [.]”
In New Jersey v. Ghodbane, Not Reported in A.3d, 2011 WL 2682897 (2011 N.J.Super.A.D.) Officer Anthony O'Brien testified to the following facts: On December 18, 2008, at approximately 1:00 a.m. he was patrolling the parking lot behind the Grasshopper Bar, which closes by 2:00 a.m. He saw defendant in the driver's seat of his car, sitting still and “looking straight up with [his] mouth open.” The car's engine was running with the headlights on. Defendant was sleeping until Officer O'Brien tapped on the window to make sure defendant was all right.
After defendant woke up and opened the door, O'Brien “noticed that [defendant] had vomited on himself.” O'Brien then asked [defendant] what he was doing, where he was going, [and] what his intentions were for the evening.” After asking these questions, O'Brien “detected an odor of alcoholic beverage flavorings.” O'Brien then asked defendant if “he was okay.” Defendant replied that he was and that “[h]e was just going home.” O'Brien asked defendant “if he had been drinking or if he was waiting for someone or just warming up his car to remain sober, to try to get sobered up before he left.” Defendant said that he “was fine,” had only drank two beers and was going to drive home. Defendant told O'Brien that he lived “right over there.” O'Brien then asked defendant to step out of his car and to provide his documentation before taking him to an empty parking space to conduct field sobriety tests. The defendant failed these tests, as well as a breath alcohol test, and was convicted after trial.
On appeal, the defendant argued inter alia that the state failed to prove intent to drive. Defendant argued that if O'Brien had not awakened him, defendant would have slept until he regained his sobriety. In affirming the conviction and finding sufficient proof, the court wrote as follows:
"Defendant relies on State v. Daly, 64 N.J. 122 (1973) in arguing that the State's proofs were insufficient to prove his intent to drive while intoxicated. * * * However, as defendant acknowledges, the defendant in Daly was asleep in a car parked in a tavern lot more than an hour after closing time with the headlights off and the seat reclined. Daly told the officer that the engine was running to keep him warm and that he had no intention of driving until he sobered up. Here, defendant had his seat-back upright, the headlights were on, the bar was still open, and he denied that he had the engine running to keep warm while he sobered up. Rather, defendant said he was “fine,” had consumed only “two beers” and was going to drive home, a short distance away. The fact that defendant had apparently both vomited and fallen asleep unknowingly before being approached by O'Brien does not raise a reasonable doubt as to his intention to operate the car at the time of his arrest."
After rejecting several other issues on appeal, including whether there was Radio Frequency Interference present, the court affirmed the conviction in its entirety.
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