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New Jersey DWI Lawyer Greggory M. Marootian, Esq.

Experienced Professionals Giving You the Facts and Restoring Your Integrity

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Livingston, NJ 07039
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A matter of Control Drunken Driving Cases can turn on 'Operation' of Car

 

By TOM HOWELL JR.

thowell@njherald.com

VERNON An intoxicated man, who police found slumped over the wheel of a red pickup truck in a Juniper Road driveway, spent 180 days in the Sussex County Jail before an appeals court last month found him not guilty.

A panel of judges said John F. Mize should not have been convicted of driving while intoxicated his third such offense despite his condition, reports of an erratic red pickup truck in the area and keys in the ignition.

Motorists' complaints and other statements were deemed hearsay, the opinion stated. The pickup's engine was off, and officers did not check to see if the hood was warm.

"Frankly, the Appellate Division made their decision based on the law," said Greggory Marootian, the attorney who argued Mize's appeal.

The case illustrates the thorny nature of DWI law in New Jersey, which requires proof an intoxicated person intending to operate a motor vehicle.

Yet police reports on DWI charges routinely involve persons who are passed out, sleeping or just sitting in a car parked near a business or the side of the road.

Putting it bluntly, judges said Mize's appeal required them "to again address the issue of what constitutes 'operation' of a motor vehicle under the statute."

Socially aware citizens tend to prevent a spike in DWI offenses as the champagne flows this holiday season, Hamburg Police Sgt. Erik Aronson said. In fact, more and more revelers seek designated driver's on New Year's Eve.

"It's a party night, so they're pretty aware there are extra patrols out," Aronson said.

But people who choose to drive while drunk face inherent road dangers and the stroke of a gavel even after they've stopped their car.

Officers have a "community care-taking" function to check on these cars, which can lead to a DWI investigation, said Martin Morrison, who argued Mize's case before the municipal and Superior Courts.

Assuming the occupant is breathing and conscious, the officer will evaluate the person's response time to questions and patterns of speech, and check for any odor of alcohol, Aronson said.

Police also look for indicators of operation, such as keys in the ignition or a running engine.

Intoxicated persons are often charged for driving to their parked location, Morrison said.

"When (police) find a drunk driver, they ask, 'How did the car get there?'" he said. "It didn't fall from the sky from a helicopter."

In one "fairly clear" case, the courts convicted an intoxicated person who parked on the shoulder of the New Jersey Turnpike, based on evidence the driver had recently obtained a ticket at the toll window, according to Marootian.

In February 2006, Aronson checked on a sleeping man behind the wheel of a GMC pickup parked at the Market Place Deli. The officer noticed the truck's engine seemed to be racing, based on exhaust from the tailpipe and the high-pitched timbre of the motor.

Aronson knocked on the window, but the man did not wake up, a court opinion states. The patrolman opened the unlocked door to speak with him, and immediately detected the odor of alcohol.

On appeal, the defense argued Aronson lacked legal basis to check on the truck, even if stores at the plaza were closed.

An appeals panel disagreed, stating Aronson's actions fell within the community caretaking exception to the warrant requirement of the Fourth Amendment.

State legislators have cracked down on drunken driving in numerous way during Aronson's seven-year career, the officer said.

The blood alcohol limit for driving has been reduced from .1 to .08 percent, the state passed John's Law, requiring police to impound a drunk driver's car for 12 hours, and a third party must now sign for an intoxicated driver's release from the police station.

Officers now use the Alcotest for breath analysis, after questions surrounding the accuracy of the Breathalyzer test.

But the process begins with whether an intoxicated person intended to operate the vehicle, a perpetual question for the courts.

"It's on a case by case basis," Morrison said. "We have to keep trying cases and forming law."


Call on  New Jersey DWI lawyer, Greggory M. Marootian when you need
experienced  professionals to give you the facts, and restore your integrity.
 

 

Copyright 1999/Present. Greggory M. Marootian, Esq.  All rights Reserved. The information in this website is provided for informational purposes on New Jersey DWI only; it is not as legal advice. Any questions about the law or your rights and obligations should be reviewed by legal counsel engaged by you and provided with your specific fact situation.

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