This is an appeal from a conviction of operating a motor vehicle while impaired, in violation of N.J.S.A. 39:4-50(b). A stenographic record having been made in the municipal court, the matter was heard de novo on the record. R. 3:23-8(a).
At 11:26 P.M. on March 23, 1976 Trooper Rich of the New Jersey State Police was called to Exit 7A of the New Jersey Turnpike by other police officers. He saw defendant near the toll booth, his van parked on the other side of the toll booth, 150 yards down the ramp. Defendant told him that he had run out of gas, was alone, had been drinking, and wanted the trooper to get some gas for him. Defendant had "an odor of alcoholic beverage on his breath." The vehicle was searched and revealed one empty beer bottle which was still "wet" on the bottom. Defendant was given a breathalyzer test at 12:12 A.M. which showed a reading of 0.13%, and again at 12:22 A.M. when a reading of 0.14% was obtained.
Defendant made a motion at the end of the State's case to dismiss for failure to prove a prima facie case of "operation" while impaired. Upon denial of this motion, defendant rested without presenting any evidence.
Defendant urges two grounds for acquittal. First, that the State failed to prove beyond a reasonable doubt that he was "operating" a motor vehicle while impaired, and second, that it is improper to infer the prior existence of impairment from subsequent impairment due to the facts and circumstances, especially an alleged intervening cause, surrounding the instant case.
The court will consider each ground separately.
The initial decision which must be made is whether the defendant was in fact "operating" his vehicle, in violation of N.J.S.A. 39:4-50(b) which provides in relevant part:
A person who operates a motor vehicle while his ability to operate such motor vehicle is impaired.
There are three basic ways to prove "operation": observation by the arresting officer, evidence of an intent to drive after the moment of arrest, or a confession by defendant that he was driving.
In the majority of cases the arresting officer observes defendant driving the vehicle. But that is not the case here.
In the second type of cases, there are circumstances which justify the presumption of an intent to operate a motor vehicle. See State v. Sweeney , 40 N.J. 359 (1963). When apprehended by the police defendant was seated behind the steering wheel of his automobile and parked by the curb on a public street with the motor running. The court stated:
Defendant "operated" or "drove" a motor vehicle under the influence of intoxicating liquor, within statutes proscribing such conduct when, in that condition he entered a stationary vehicle, on a public highway, turned on the ignition, started and maintained the motor in operation and remained in the driver's seat behind the steering wheel, with intent to move the vehicle." id. [at 360; emphasis supplied]
The issue of intent was discussed again in State v. Daly , 64 N.J. 122 (1973). Defendant was arrested at 3:20 A.M. while sitting in his parked car in the parking lot of a tavern. The lights were off but the motor was running, and defendant told the officer that he was unable to drive home and was sitting in the car to keep warm. The court found this insufficient evidence of intent to operate and reiterated the necessity thereof:
In Daly the court was satisfied that defendant had the motor running to keep warm, and not with the ...