Proof of operation of a motor vehicle in a DWI case

The State has the burden of proving beyond a reasonable doubt that a defendant was driving while intoxicated. State v. Grant, 196 N.J. Super. 470, 477 (App. Div. 1984). N.J.S.A. 39:4-50 specifically applies to a person who operates a motor vehicle while under the influence of intoxicating liquor . . . . (Emphasis added). The term operate must be given broad construction. State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993). Actual operation is not required to satisfy the element. Ibid.; State v. Sweeney, 40 N.J. 359, 360-61 (1963). Operation may be proved by any direct or circumstantial evidence as long as it is competent and meets the requisite standards of proof. State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). Operation may be proved by actual observation of the defendant driving while intoxicated, State v. Prociuk, 145 N.J. Super. 570, 573 (Law Div. 1976); by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, State v. Mulcahy, 107 N.J. 467, 476 (1987); Morris, supra, 262 N.J. Super. at 419-20; Sweeney, supra, 77 N.J. Super. 512, 521 (App. Div. 1962); State v. Witter, 33 N.J. Super. 1, 5-7 (App. Div. 1954); or by defendant¹s admission, State v. Hanemann, 180 N.J. Super. 544, 547 (App. Div.) (affirming defendant¹s conviction based upon his admission that he had been driving earlier that night after the police found his empty overturned vehicle on the highway), certif. denied, 88 N.J. 506 (1981); State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974) (affirming defendant¹s conviction based on his admission to drinking and driving when the police woke him up in his parked car on Interstate 287); State v. Guerrido, 60 N.J. Super. 505, 509 (App. Div. 1960) (affirming defendant¹s conviction based on the testimony of two witnesses that he was intoxicated and his admission to police that he had been driving after his car was found buried full length in some shrubbery and lilac bushes.)
The Appellate Division in State v Ebert 377 N.J. Super. 1 (App. Div. 2005) recently detailed the proof required by the state. 1. The state has the burden of proving beyond a reasonable doubt that a defendant was operating a motor vehicle while intoxicated. N.J.S.A. 39:4-50. "Operation" may be proved by actual observation of the defendant driving while intoxicated, by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, or by the defendant's admission. 2. Defendant's .27 percent BAC, along with the fact that she had driven to the parking lot of a restaurant on a major state highway, Route 46 in Denville, was sufficient to sustain her conviction for reckless driving. Conclusion If charged with Driving While Intoxicated, immediately schedule an in-office appointment with a trial attorney. Don't rely on a real estate attorney, public defender or a family member who simply attended law school. When your driving privileges and ability to drive to work is on the line, hire an experienced attorney.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

8. You must wait 5-10 years to expunge a first offense. 2C:52-3

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.

11. You may be required to do Community Service.

12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.

13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.

14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

15. You lose the presumption against incarceration in future cases. 2C:44-1

16. You may lose your right to vote.

The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.

Jail for Crimes and Disorderly Conduct:

If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.

NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;

(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;

(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;

(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.

2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:

a. (1) $200,000.00 when the conviction is of a crime of the first degree;

(2) $150,000.00 when the conviction is of a crime of the second degree;

b. (1) $15,000.00 when the conviction is of a crime of the third degree;

(2) $10,000.00 when the conviction is of a crime of the fourth degree;

c. $1,000.00, when the conviction is of a disorderly persons offense;

d. $500.00, when the conviction is of a petty disorderly persons offense;

If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.