For affirmance -- Acting Chief Justice Jacobs, Justices Sullivan, Pashman and Clifford and Judge Conford. For reversal -- Justice Hall and Judge Collester. The opinion of the Court was delivered by Sullivan, J. Clifford, J., (concurring). I am authorized to indicate that Pashman, J., joins in this opinion. Hall, J., and Collester, P.J.A.D., Temporarily Assigned, dissenting. Pashman and Clifford, J.J., concur in the result.
[64 NJ Page 123] Defendant was arrested on a charge of operating a motor vehicle while under the influence of intoxicating
liquor, a violation of N.J.S.A. 39:4-50(a). He was convicted of the charge in the municipal court, appealed to the county court, was tried de novo in that court and was again found guilty. He took an appeal to the Appellate Division which, in an opinion with one judge dissenting, 126 N.J. Super. 313, reversed his conviction on the ground that defendant was not shown to have been "operating" his motor vehicle within the meaning of the statute. The State appeals as of right. R. 2:2-1(a).
Defendant was arrested on February 15, 1972 at 3:20 A.M. while sitting in his car which was parked in the parking lot of a tavern. According to the arresting officer, the lights of the car were off, but the motor was running. Defendant was sitting in the driver's seat which was slightly reclined*fn1 and "looked up" as the officer shined a light into the car. The officer testified that defendant was not asleep at the time. Defendant told the officer he was sitting in the car to keep warm and intended to drive home in a little while. The officer had defendant step out of the car and immediately noted he was intoxicated. He told defendant that due to his condition he could not drive his vehicle. Whereupon, defendant uttered a vulgarism and stated: "I will drive my car when I feel like it." The officer then placed defendant under arrest.
At the trial de novo defendant's intoxication was conceded. Defendant testified that he had been drinking in the tavern and left between twelve and twelve-thirty in the early morning. He said he realized he had too much to drink and decided to "sleep it off." To this end he got into his car, reclined the driver's seat and fell asleep. He was awakened a few times by the cold and started the engine to get some heat in the car. He was sound asleep when the officer rapped on the car window and shined a light into the car. He said that he told the officer he had no intention of
driving, but he was arrested anyway and taken to the police barracks.
We agree with the Appellate Division holding that defendant was not shown to be "operating" his motor vehicle within the meaning of the statute. In State v. Sweeney, 40 N.J. 359 (1963), defendant, in a state of intoxication, was found sitting in the driver's seat of his car which was parked at the curb with the motor running. There we held defendant could be convicted of "operating" his car if there was evidence in the case from which the trial court could clearly infer that defendant intended to move the vehicle.
In the instant case, defendant denied any intent to move or drive his car until he had sobered up and, contrary to the State's contention, there was no evidence from which any such intent could be inferred beyond a reasonable doubt. The tavern, concededly, was required to close at 2:00 A.M. and there was no proof that it did not. Defendant had, thus, been in his car for at least one hour and twenty minutes without driving when come upon by the police.
In the alternative, the State argues that intent to move the vehicle should not be a required element of the offense of operating a motor vehicle while intoxicated. The State's position is that an intoxicated person who enters a motor vehicle and starts the engine is a threat to himself and to the public because of the hazard that either he may try to drive the vehicle, or accidentally cause it to be moved.
We recognize that there is a risk involved. However, the statutory sanction is against "operating" a motor vehicle while intoxicated. We conclude, as we did in Sweeney, that in addition to starting the engine, evidence of intent to drive or move the vehicle at the time must appear.
CLIFFORD, J., (concurring). I am in agreement with the result achieved by my colleagues but do not subscribe to the theory upon which the decision is based. It springs from the ...