What Type of Driving is Required to be Convicted of a DWI?

Operation of a Motor Vehicle

As seen in State v. Morris, 262 N.J. Super. 413, 417 (1993), the term “operate” must be given broad construction. In the state of New Jersey, the actual driving of a motor vehicle is not required to satisfy the element for a DWI conviction. Instead, the operation element may be satisfied by any direct or circumstantial evidence of an observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated or by defendant¹s own admission.

It is possible that the defendant may have been in the driver's seat of their vehicle while the vehicle was parked in a parking lot with the keys on the dashboard and the police may deem the defendant as having operated the vehicle. It is also possible that the defendant may have been asleep in the back seat of the car and the police deemed the defendant to have been operating the vehicle. Point being, the state's burden to prove that the driver operated the vehicle while intoxicated is not clear and can be incredibly subjective.

In attempting to prove the operation of the motor vehicle, the state will often look to the intent of the driver. Case law in New Jersey makes it clear that an individual who attempts to put the keys in the ignition of the vehicle is guilty of driving while intoxicated. Although the individual may never actually drive the vehicle after leaving a bar and may never actually place the keys in the ignition, the New Jersey Supreme Court has held that the intent of the driver is clear and thus sufficient to satisfy operation of the motor vehicle under the New Jersey drunk driving statute, N.J.S.A. 39:4-50.

To prove intent, the state will consider questions like:

  • Was the car running?
  • Was the driver sleeping?
  • How long was the driver sleeping?
  • Where were the keys located at the time the police became aware of the driver and the vehicle?
  • Where was the car located at the time of the stop (parking lot, side of the road, etc.)?
  • Was it possible for the vehicle to be driven at the time of the stop (was there a sufficient supply of fuel; were all the tires in place; was the weather prohibitive to being able to operate a vehicle)?

While Intoxicated

In New Jersey, a person is guilty of drunk driving if they operate a motor vehicle with a BAC of 0.08% or greater. BAC refers to the amount of alcohol in a person's blood.

In addition to being under the influence of intoxicating liquor, It is also against the law for a person to operate a motor vehicle under the influence of a narcotic, hallucinogenic or habit producing drug.