One of the key elements that the State must prove in a DWI or DUI prosecution is the element of operation. The concept of operation in the DWI realm encompasses much more than the act of driving. The case-law has really defined what it means to “operate” for NJ driving while intoxicated purposes. As with all issues where the mind-set of the defendant is in question, the ultimate intentions of the defendant are a fact sensitive issue to be determined by the court, but know this….it is not whether you were actually driving, it’s whether you intended to do so, took some action to make it happen, and there was some possibility of motion by the motor vehicle.
For example, if the police found a man sleeping and parked in a rest stop, with the keys in the ignition, but the car not on, and later arrested that person for DWI, was that defendant operating the motor vehicle? The answer, maybe. First, how did he get there? Maybe someone dropped him off. Maybe he drove there, and drank in the parking lot, but never drove, and never intended to drive until he was sober. Can the State prove (beyond a reasonable doubt) that he was driving prior to the rest stop or intended to drive while he was intoxicated? Were there other attendant facts that make it likely that he did operate the vehicle, like a flat tire
Maybe a woman decides that she should not drive and pulls over to the side of the road to sober up. If the police come upon her, what then. If she tells that police that she is “sleeping it off” , will she be exonerated. Probably not. If she tells that police that she pulled over because she was upset, opened a bottle of liquor and drank it, and called a friend to come pick her up, did she operate while she was intoxicated? Did she intend to operate the vehicle while intoxicated.
The facts are always unusual in operation cases. A skilled and experienced DWI lawyer will understand the facts of your operation issue and know how to apply the case-law for the best possible defense.