By: Justin M. Smigelsky, Esq.

Operation of a motor vehicle is an element of the offense of driving under the influence of drugs or alcohol. Because a DUI violation is treated as a quasi-criminal prosecution, every element must meet the evidentiary standard of “beyond a reasonable doubt.” Therefore, a conviction for DUI requires that the prosecutor prove, beyond a reasonable doubt, that the defendant was operating the motor vehicle. Although the analysis of whether or not the defendant had been operating a motor vehicle would appear to be simple, the concept of “operation” is much broader than the concept of “driving.”

The word “operation” has not been clearly defined by New Jersey statute, but has been molded over time by case law. Contrary to popular belief, operation of a motor vehicle does not require physical movement of a vehicle or even that the vehicle is operable. Under the law, intention to move the motor vehicle – rather than actual movement – will suffice. A determination of whether or not the defendant had the intention to ultimately cause the motor vehicle to move is a fact-sensitive analysis; the location of the defendant in relation to the vehicle and the location of the keys are often critical evidence of an intention to operate. Starting the engine of the vehicle is not required to prove operation – sitting in a motor vehicle with your keys in your hand, or even approaching your vehicle with the intent to drive, will ordinarily constitute “operation.” Operation has also been established where the vehicle was inoperable, out of gas, or coasting in neutral. Thus, if the possibility of motion exists, the defendant has operated the vehicle for purposes of DUI.

Generally, operation may be proven in three ways: direct evidence, circumstantial evidence, or admission. As to direct evidence, there may be observations by a police officer or witness, video recordings, or other direct evidence of operation. The most common example is for a witness to testify in court as to his or her observations to establish that the defendant had been operating the vehicle. Observation can also be demonstrated by circumstantial evidence – if the facts and circumstances allow for an inference of operation. For example, if the police come upon an accident scene to find the defendant seated behind the wheel, the natural inference to be drawn is that the vehicle was operated and that the defendant was the operator.  Third, operation can be proven by admission – if the defendant voluntarily admits to the police officer that he or she had driven or intended to drive the vehicle, operation can be established.

As to location requirements, “operation” for purposes of DUI is prohibited within the territorial jurisdiction of New Jersey – any public or private area, field, lot, property, building, roadway, highway, etc. In other words, an intoxicated driver may not legally operate a motor vehicle anywhere in this State.

An arrest for DUI can have very serious consequences including, but not limited to, license suspension, fines, mandatory installation of an ignition interlock device, and incarceration. If you have been arrested for DUI or a related offense, you may wish to consult with an experienced attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq.  /  Timothy J. Little, P.C.  –  2016  –  All Rights Reserved

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. represents individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Hazlet, Aberdeen, Matawan, Keyport, Cliffwood Beach, Middletown, Freehold), Union County, Ocean County, Somerset County, and Burlington County.