(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-2011-18T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
February 10, 2020
v. APPELLATE DIVISION
Submitted January 28, 2020 – Decided February 10, 2020
Before Judges Fisher, Accurso and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Municipal Appeal No. 6184.
Law Offices of James A. Abate, LLC, attorneys for
appellant (James Alexander Abate, of counsel and on
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh, Chief
Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
In appealing his convictions for operating a vehicle while under the
influence, N.J.S.A. 39:4-50(a), and for refusing to submit to a breath test,
N.J.S.A. 39:4-50.2, defendant argues that the evidence does not support the
statutory requirement of "operat[ing]" the vehicle when the record reveals he
was found sleeping behind the wheel with the engine running. In affirming, we
reject this argument because it is inconsistent with the well-established manner
in which "operation" has been defined.
Defendant was convicted by a municipal court and again, via municipal
appeal, by the Law Division of violating both N.J.S.A. 39:4-50(a) and N.J.S.A.
39:4-50.2. A two-year license suspension was imposed. In appealing to us,
I. . . . THERE WAS NO EVIDENCE PRESENTED
THAT DEFENDANT OPERATED HIS VEHICLE
UNDER THE INFLUENCE OF ALCOHOL, [OR]
THAT HE FORMED A CONSCIOUS INTENTION
TO DO SO.
II. THE MUNICIPAL COURT COMMITTED
REVERSIBLE ERROR BY FAILING TO
DISQUALIFY [THE STANDARDIZED FIELD
SOBRIETY TESTS] DUE TO DEFENDANT’S
III. THE MUNICIPAL COURT COMMITTED
REVERSIBLE ERROR BY ADMITTING THE
ALCOTEST INFLUENCE REPORT DESPITE TIME
IV. THE EFFECT OF THE CUMULATIVE TRIAL
ERRORS IN THE CONTEXT OF THE
PROCEEDINGS BELOW DEPRIVED DEFENDANT
OF A FAIR TRIAL AND WARRANT REVERSAL.
We find insufficient merit in Points II, III, and IV, to warrant further discussion
in a written opinion. R. 2:11-3(e)(2). We reject defendant's first point for the
The main issue concerns whether the factual record supported the Law
Division judge's determination that defendant was "operating" the motor vehicle
within the meaning of N.J.S.A. 39:4-50(a). Our limited scope of review requires
deference to the Law Division judge's findings of fact; indeed, in matters that
originate in municipal court, appellate deference "is more compelling," and we
"ordinarily" will not "undertake to alter concurrent findings of facts and
credibility determinations made by two lower courts absent a very obvious and
exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999); see
also State v. Stas, 212 N.J. 37, 49 n.2 (2012).
The record included evidence from which the Law Division found that
police officers were called to and arrived at a 7-Eleven in Wanaque on
September 7, 2017, around 10:30 p.m., because a male – the defendant – was
observed sleeping in his car in the parking lot. The car's engine was running.
The officers observed a half-eaten sandwich and prescription bottles on the front
passenger seat, and as the officers woke defendant, they smelled a "strong odor
of alcoholic beverage." Defendant said he had been sleeping for about thirty to
forty minutes. In response to the officers' inquiries, defendant acknowledged he
had had "a couple of drinks." After unsatisfactorily performing a several field
sobriety tests, defendant was arrested. He later acknowledged at the police
station that he was under the care of a physician and was prescribed Methadone,
Hydrocodone, Xanax, and Cymbalta. He also admitted he had two drinks within
a three-hour period. After careful review of the record, we are satisfied there
was ample evidence from which the fact finder could conclude that defendant
was intoxicated when he was sleeping behind the wheel of his parked car. The
sole question we focus on is whether an intoxicated individual, seated behind
the wheel of a vehicle with its engine running, is in violation of N.J.S.A. 39:4-
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 of this offense.1 The statute instead prohibits "operat[ion]" of a
The publishers of New Jersey Statutes Annotated apparently included a title
to the statute: "Driving While Intoxicated." That title, however, was not part
vehicle while under the influence.2 "Operation" has been interpreted broadly,
State v. Tischio, 107 N.J. 504, 513-14 (1987); State v. Mulcahy, 107 N.J. 467,
478 (1987); State v. Wright, 107 N.J. 488, 494-503 (1987); State v. Sweeney,
40 N.J. 359, 360-61 (1963), and encompasses more than just "driving" a vehicle.
Operation, for example, includes sitting or sleeping in a vehicle, with the engine
running, even when the vehicle isn't in motion. Indeed, the Supreme Court has
recognized that "operation" may be found from evidence that would reveal "a
defendant's intent to operate a motor vehicle." Tischio, 107 N.J. at 513. Thus
an intoxicated person could be found guilty of violating N.J.S.A. 39:4-50(a),
when running the engine without moving the vehicle, as here, or by moving or
attempting to move the vehicle without running its engine, see State v. Stiene,
203 N.J. Super. 275, 279 (App. Div. 1985). Indeed, the Supreme Court has held
that an individual who staggers out of a tavern but is arrested before he is able
of what the Legislature originally enacted, see L. 1921, c. 208, and was not
included by the Legislature in any of its later amendments, including the most
recent 2019 amendment, see L. 2019, c. 248, so, the title does not have the force
of law. See Phillips v. State, Dep't of Defense, 98 N.J. 235, 244 n.3 (1985);
State v. Malik, 365 N.J. Super. 267, 279 (App. Div. 2003); N.J.S.A. 1:1-6.
N.J.S.A. 39:4-50(a) requires that we consider whether the defendant was
"operating" a vehicle, not whether the defendant was "driving" the vehicle.
For that reason – and maybe to dissuade the public from the misconception
that "driving" is required – we should perhaps refer to a violation as an "OWI"
("operating while intoxicated") instead of a "DWI."
to insert a key into his vehicle's ignition may be convicted of N.J.S.A. 39:4-
50(a). Mulcahy, 107 N.J. at 470, 483. In short, operation not only includes the
circumstances to which we have just referred but may also be established "by
observation of the defendant in or out of the vehicle under circumstances
indicating that the defendant had been driving while intoxicated." State v. Ebert,
377 N.J. Super. 1, 11 (App. Div. 2005). For example, we sustained a DWI
conviction where the defendant was not even in her vehicle but instead was
looking for her vehicle in a restaurant parking lot while in an intoxicated state.
See id. at 9-11. 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. Stiene, 203 N.J. Super. at 279.
As the Supreme Court held in Tischio – and it apparently bears repeating
– "[w]e are thus strongly impelled to construe [the statute] flexibly,
pragmatically and purposefully to effectuate the legislative goals of the drunk-
driving laws," 107 N.J. at 514, which, of course, are to rid our roadways of the
scourge of drunk drivers, id. at 512. See also Mulcahy, 107 N.J. at 479
(recognizing, in quoting State v. Grant, 196 N.J. Super. 470, 476 (App. Div.
1984), that the drunk driver remains "one of the chief instrumentalities of human
catastrophe"). 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).
In so holding, we readily acknowledge this opinion expresses nothing
new. 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).3 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. See R. 1:36-2(d)(6).
See State v. Jerda, No. A-1154-18 (App. Div. Jan. 29, 2020); State v. Costa,
No. A-2257-18 (App. Div. Dec. 2, 2019); State v. Fleming, No. A-2651-18
(App. Div. Nov. 19, 2019); State v. Young, No. A-1320-18 (App. Div. July 3,
2019); State v. Morcos, No. A-1939-17 (App. Div. June 21, 2019); State v.
Yakita, No. A-2589-17 (App. Div. May 29, 2019); State v. Wendler, No. A-
0414-17 (App. Div. May 22, 2019). We cite these unpublished opinions not
because they are of precedential value – they aren't, R. 1:36-3 – but to illustrate
the reason for publishing this opinion.