The “D” in DWI may not mean what you think it means.

by: Peter J. Gallagher (LinkedIn)

The Appellate Division recently invoked the great Inigo Montoya in a decision on New Jersey’s law against “operating a vehicle while under the influence.” (For those who don’t know Inigo Montoya from The Princess Bride or are unfamiliar with his famous observation – “You keep using that word. I do not think it means what you think it means” – shame on you, but also click here.) In State v. Thompson, defendant argued that he could not be convicted for operating a vehicle while under the influence because he was only sleeping in his car when police found him, not driving the car. The court rejected this interpretation of the key word, “operating,” and published its decision because defendants continue to make this same argument even though the Supreme Court and Appellate Division have consistently rejected it.

In Thompson, police were called to a 7-11 after a man was observed sleeping in his car in the parking lot. The engine was running. When the officers approached, they noticed a half-eaten sandwich and several prescription bottles on the front seat. They also smelled “a strong odor of alcoholic beverage.” Defendant said he had been sleeping for 30-40 minutes and admitted having had a “couple of drinks.” After he failed several field sobriety tests and was taken to the police station, he acknowledged that he was under the care of a physician and had been prescribed Methadone, Hydrocodone, Xanax, and Cymbalta. He also confirmed that he had two drinks in a three-hour period.

Based on all of this, the Appellate Division was convinced that a reasonable juror could conclude that defendant was intoxicated when he was sleeping behind the wheel of his parked car. The only question was whether sleeping in a parked car with the engine running qualifies as “operating” a vehicle while under the influence. As the Appellate Division observed: “Although a violation of N.J.S.A. 39:4-50(a) is commonly referred to as a DWI violation (‘driving while intoxicated’), the statute actually makes no mention of ‘driving’ as a fact that must be proven in order to convict an individual for this offense.”

The Appellate Division then noted that “operation” has been interpreted broadly. The court described situations in which a defendant was deemed to have been “operating” a vehicle while under the influence, none of which involved the defendant “driving” the vehicle. For example:

  • a defendant who was “running the vehicle without moving the vehicle, as here, or [ ] moving or attempting to move the vehicle without running its engine;”
  • a defendant who “staggered out of a tavern but [was] arrested before he [was] able to insert a key into his vehicle’s ignition;” and
  • a defendant who “was not even in her vehicle but instead was looking for her vehicle in a restaurant parking lot while in an intoxicated state.”

Accordingly, the Appellate Division held:

There is no doubt that an intoxicated and sleeping defendant behind the wheel of a motor vehicle with the engine running is operating the vehicle within the meaning of N.J.S.A. 39:4-50(a), even if the vehicle was not observed in motion; it is the ‘possibility of motion’ that is relevant.  

The court then “readily acknowledge[d]” that it was not expressing anything new in its opinion. It nonetheless felt compelled to publish its decision because of how often this same argument had been raised, and rejected, in recent months:

We have been driven to publish because of the extraordinary number of times the court has recently faced this precise issue. Seven other times within the last twelve months – each time by unpublished opinion – we have considered whether an intoxicated person, sleeping behind the wheel of a parked car with its engine running, can be convicted of N.J.S.A. 39:4-50(a). For the benefit of the public, as well as the bench and bar, we deem it appropriate to express our holding in a published opinion.

In other words, “I do not think DWI means what you think it means.”

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