I have dealt with a number of Cases where clients have been charged with the very serious offense of DWI, though the facts subsequently prove they had not actually operated a motor vehicle as operation is defined under NJ Law for a conviction for DWI.
New Jersey Case Law is clear that keys in the ignition, even with the engine running, is not a per se violation of New Jersey’s DWI Law. The leading cases on operation explore surrounding factual circumstances to determine whether an individual was operating a car and have concluded in some instances an individual in a car with the ignition running is not necessarily operating the car, and in some instances may be, at least by a preponderance of the evidence to allow an arrest. See generally, State v. Daly, 64 N.J. 122 (1973), State v. Mulcahy, 107 N.J. 467 (1987). (Where the defendant’s car was also illegally parked on a sidewalk and a witness observed the defendant drive.)
Note too actual operation of a motor vehicle is not required for conviction under N.J.S.A. 39:4-50. State v. Wright 107 N.J. 488, 497 (1987). New Jersey Courts have frequently reviewed operation cases, and Daly and Mulcahy are the two oft-cited Supreme Court decisions on point. The Supreme Court in Daly considered the operation element where the defendant was sleeping in his parked car behind a tavern in a reclined driver’s seat with the motor running to provide heat. The Court found requisite intent to operate had not been proven, holding “evidence of intent to drive or move the vehicle at the time must appear.” Id. at 125. Other relevant facts were the defendant was in the tavern until closing, had to leave, it was winter; he entered his car and turned on the heat to keep warm, and went to sleep. There was no way to find intent to drive. The Mulcahy Court held that “when one enters a car and puts one’s self in the driver’s seat, that person is in control of the car and an intention to drive the vehicle, combined with physical movements to put the car in motion, constitutes operation.” Id. at 479.
Driving is not operating a car by clicking a key fob to gain access to groceries in a trunk, or engaging the ignition to obtain heat on a cold evening.
However, be careful. Separate your drinking from your driving. It has happened that people have been caught up in unusual circumstances and been charged with DWI. Even proof of intent to drive, with no observation of actual driving, can result in conviction.