Kolovsky, Matthews and Ard. Kolovsky, P.J.A.D. (dissenting).
Defendant was charged with operating a motor vehicle while under the influence of alcohol, contrary to the provisions of N.J.S.A. 39:4-50(a). He was tried in the Municipal Court and found guilty. An appeal was taken to the Monmouth County Court and after trial de novo defendant was again found guilty. He was fined $200 and his driving privileges were suspended for two years.
Defendant was arrested at 3:20 A.M. while in his car which was parked in the parking lot of an Englishtown tavern. Defendant admitted at the time of arrest that he was under the influence of alcohol and so stipulated at both trials below. Defendant further admitted that the key was in the ignition and the motor running at the time of arrest.
The arresting officer testified that at about 3:20 A.M. he and his partner observed a vehicle in the parking lot of the Brookside Tavern in Englishtown. The motor was running and it appeared that someone was in the vehicle. The headlights of the vehicle were off. The police car headlights were directed onto the parked car and the officer approached the vehicle and rapped on the window of the driver's side. The defendant "looked up" at the officer as he shined a light into the car. The driver's seat was slightly reclined although in the officer's opinion the car could be driven with the seat in that position. Defendant said he was keeping warm and was going to drive home in a little while. The officer observed
defendant's intoxicated condition and told him he would "have to stay here; you can't drive your vehicle." The officer stated that defendant then said, "you're full of shit. I will drive my car when I feel like it." Defendant was arrested and refused to take a breath test explaining that he knew he was drunk and did not need a test to tell him so.
At the time of arrest the officer did not notice if the car was in gear, if the hand brake was on or if defendant had his feet on the pedals. He stated that the temperature was near freezing and defendant was wearing an army field jacket. The bars in Englishtown close at 2 A.M.
Defendant testified that he had driven from upstate New York to visit his sister in Englishtown. Upon arrival in Englishtown around 7:30 or 8 P.M., he stopped at the tavern. He attempted to call his sister a couple of times but got no answer. A movie on television got his attention and he remained in the tavern drinking and watching television until sometime between 12:00 and 12:30 A.M. Upon leaving the tavern he stated he realized he had "a bit too much to drive," and he made up his mind to sleep it off in his car. Upon entering the car he turned on the motor to run the heater for warmth and "dropped the seat back a bit to sleep." (The car was a foreign built sports model.) The seat was reclined to about 120 degrees. He slept on and off until awakened by the trooper, waking occasionally to run the motor for warmth.
He said he was awakened by a light laid against the window of the car on the driver's side and somebody rapping on the glass. He opened the window, saw a police officer, and was asked for his license and registration. He claims the officer said to his partner "this man is driving under the influence" to which he says he responded, "No, I'm not driving." He was then asked why the motor was running and said to "keep myself warm." The officer said that showed intent to drive and defendant responded "* * * that's a lot of bullshit. I have no intention of driving this car." He was then arrested.
Defendant also testified that he had not left the car in the lot because he had valuable belongings in the trunk of his car and that the lock on the trunk was broken. He also said that he had not remained in the tavern because he had not intended to buy any more drinks.
The County Court Judge found defendant guilty as charged; his conclusions, in their entirety, were:
There is no doubt in my mind, [the] most reasonable inference [to be drawn], especially because of the [interest of the] defendant in the outcome of this litigation, that he was behind the wheel and he intended to drive. He was not going to leave that car there all night with all the thousand dollars worth of valuable goods in it. That's the reason he didn't call a taxicab, [he was] just going to see if he felt well enough to pull out of there when he could and he certainly would not sleep there all night long, I'm quite sure.
If you have had any experience in drinking intoxicating beverages you also find that the calls of nature come on rather suddenly. He wasn't going to go out there and ...