Dismissal of DWI Charge, Operation Issue, Recent Result in Newark Muni Court

I recently represented a defendant charged with DWI in the Newark Municipal Court. It was a slightly unusual case that presented what is commonly known as an operation issue. In order for the State to prove that the accused was driving while intoxicated, the element of operation must be established. For example, with most DWI offenses, the defendant is pulled over while operating his/her car. Thus, the operation prong of the offense is clear. However, in some cases the lines are not so bright. My client had his car parked on the street. The car was not running and the keys were not in the ignition. While he was patronizing a local restaurant, he noticed the police ticketing his car. He ran out to stop them, and during the conversation they noticed the smell of alcohol on his breath and eventually arrested him for Driving While Intoxicated. Now, the State can prove operation if evidence is presented illustrating the defendant’s intent to operate. For example, a car pulled over on the shoulder of the parkway. The keys are in the ignition, the car is not running, the defendant is passed out in the front seat, and the police conduct an investigatory stop, eventually arresting the suspect for DWI. The question is how did he/she get there and were they intoxicated while operating. The Court is permitted to “connect the dots.”

However, in a factual setting similar to ours, there is a thousand and one explanations for how that car may have got there, and none of which include my client driving while intoxicated. Was it possible that he had driven that car while drunk? Yes..he did not reside in the area, it was late at night, he was parked directly in front of the restaurant But, once again, we have a simple probable cause/suppression issue. Unknowingly, the police sealed their own fate when they issued the parking ticket. But that alone did not seal the deal. The old adage “where there is smoke there is fire” certainly applies to DWI offenses. But this case can be compared to two boy scouts rubbing two sticks together, creating a little heat, but no fire. The key is a prepared and coherent argument that precisely addresses each suspect element. All that is required is to disprove one element of the State’s case for a not guilty verdict

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