Reprint from the New Jersey Law Journal (7/28/2009)
Being drunk behind the wheel of a parked vehicle, even with the engine running and the parking brake off, can't carry a DWI conviction without proof of intention to drive, a New Jersey appeals court held on Tuesday.
Though unpublished, the ruling is notable for its departure from the New Jersey courts' usual strict tendency to uphold drunken driving convictions based on observational evidence of any form of operation of a vehicle.
In State v. Putz , A-1004-08, the Appellate Division said the trial court ignored credible evidence that the defendant, who was found asleep in his idling pick-up truck after midnight, had no intent to move the vehicle.
O'Shea & Associates Note:
Ohio may have addressed this problem when it enacted a law called "physical control." Under that newer statute (RC 4511.194), a person may be convicted for being under the influence in a non-moving/parked car. The penalties for a violation of this statute are somewhat less that for a violation of the normal DUI statutes (RC 4511.19/4511.191). Many experienced DUI lawyers try to get a prosecutor to offer a DUI defendant the opportunity to plea to a "physical control" violation. Looks like New Jersey may have to play catch-up to Ohio on this issue.