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Can You be Convicted of DWI if You are Asleep in the Car?

In order to be convicted of DWI in New Jersey, the Court must find or you must tell the Court that you operated the motor vehicle. The term "operation" has been interpreted broadly and encompasses more than just "driving" a vehicle. Operation, for example, can include sitting or sleeping in a vehicle, with the engine running, even when the vehicle isn't in motion. The New Jersey Supreme Court has recognized that "operation" may be found from evidence that would reveal someone's intent to operate a motor vehicle by running an engine or attempting to put the keys into the ignition.

The issue of operation can be a fact sensitive one. The municipal court defense bar routinely relies on the published New Jersey Supreme Court opinion, State v. Daley, 64 N.J. 122 (1973). In Daley, the Defendant was sitting in his parked, running car outside a bar at 3:20 am. The lights were off and the Defendant told the officer he was sitting in the car to keep warm and intended to drive home in a little while. At trial, Defendant testified that he had been drinking, left the bar and fell asleep in his car to "sleep it off." He further testified that he got cold and started the engine to get some heat in the car.

In finding that there was no "operation" within the meaning of the law, our Supreme Court held that the defendant denied any intent to move or drive his car until he had sobered up and, because the bar had closed at 2 am, Defendant had been in his car for at least one hour and twenty minutes without driving prior to police contact.

In a recent published Appellate Division opinion, however, the Court seemed to disregard the holding of Daley. In State v. Wilson, ___ N.J. ___ (App. Div. 2020) (Docket No. A-2011-18T4), the Court held a Defendant who was asleep in his running car at a 7-11 was found to be operating the vehicle within the meaning of the DWI law. in what appeared to be more of a policy decision rather than a legal analysis, the Court stressed the importance of giving effect to the legislative intent of DWI laws over interpretation and analysis of the issue of "operation." "We are thus strongly impelled to construe the statute flexibly, pragmatically and purposefully to effectuate the legislative goals of the drunk driving laws, which, of course, are to rid our roadways of the scourge of drunk drivers. This well-established legislative goal would be frustrated if we were to seek or encourage irrelevant distinctions between what occurred here and what the Supreme Court and this court has already found to be "operation" within the meaning of N.J.S.A. 39:4-50(a). Wilson, supra at 6, 7.

In conclusion, the answer is maybe. Daley is still good law and available as a defense, however, the State now has the broad holding of Wilson to rely on. If you are charged with DWI or any other offense, give me or one of the other fine municipal court practitioners out there a call to protect your rights.

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