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State v. Sweeney

Decided: July 1, 1963.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK M. SWEENEY, DEFENDANT-APPELLANT



On certification from the Appellate Division.

For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Proctor, Hall, Schettino and Haneman. For reversal -- Justice Francis. Francis, J. (dissenting).

Per Curiam

[40 NJ Page 360] We read the opinion of the Appellate Division, 77 N.J. Super. 512 (1962), to hold that a person "operates"

-- or for that matter, "drives" -- a motor vehicle under the influence of intoxicating liquor, within the meaning of N.J.S.A. 39:4-50 and 39:4-50.1, when, in that condition, he enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains in the driver's seat behind the steering wheel, with the intent to move the vehicle, and that in this case the trial court could clearly infer such intent from the evidence. We thoroughly agree and therefore affirm the judgment of conviction.

FRANCIS, J. (dissenting).

The statute being construed provides that "[a] person who operates a motor vehicle while under the influence of intoxicating liquor * * * shall be subject, for a first offense, to a fine of not less than two hundred nor more than five hundred dollars ($500.00), or imprisonment for a term of not less than thirty days nor more than three months, or both, * * * and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of two years from the date of his conviction." N.J.S.A. 39:4-50.

Prior to defendant's arrest, his car was parked at the curb on Broadway, a main artery in the City of Paterson. There is not the slightest suggestion that the parking position was not normal and in accord with the Motor Vehicle Act as well as pertinent local ordinances. There is no proof in the record as to the length of time it had been parked there, or in fact, that defendant did the parking.

A police officer happened along and observed the defendant sitting in the driver's seat with the motor running. There is no suggestion that the car was in gear. No one said it moved an inch from its parked position. The defendant was intoxicated and the officer ordered him out of the car. On these facts he was charged with operating his car under the influence of intoxicating liquor. The County Court judge expressed the charge in the terms commonly employed, "drunken driving." See State v. Emery, 27 N.J. 348, 351, 355 (1958);

Latimer v. Wilson, 103 N.J.L. 159, 163 (E. & A. 1926); State v. Rodgers, 91 N.J.L. 212, 214-215 (E. & A. 1917).

At the trial in the Municipal Court, defendant stipulated intoxication, and that he turned the ignition key and started the motor. No further testimony was offered. The court found defendant guilty of operating his car under the influence of intoxicating liquor, saying among other things that "perhaps" Sweeney did not mean to start the motor, but regardless, there would have to be a finding of guilt.

The Appellate Division opinion affirming the conviction says:

"* * * The turning of the automobile's ignition switch and the starting of its motor was an operation of the car connected with its use and presence on the highway. Moreover, such an act justifies the inference that defendant intended to take the next ...


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