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State v. McColley

Decided: March 28, 1978.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JON R. MCCOLLEY, DEFENDANT-APPELLANT



On appeal from Middlesex County Court.

Lora, Seidman and Milmed.

Per Curiam

Defendant Jon R. McColley appeals his convictions for driving while impaired, in violation of N.J.S.A. 39:4-50(b), and driving while on the revoked list, in violation of N.J.S.A. 39:3-40.

The record shows that on October 31, 1976 at 1:21 A.M. defendant was seen driving a car in a parking lot by two Woodbridge Township police officers who had earlier seen McColley in an intoxicated and disorderly condition in a nearby store.

The parking lot, which is owned by a moving company in which defendant is a principal, is behind the company's business offices and is used primarily to park the company's trucks. Defendant's residence is also located on the lot.

Although there is no fence around the property, a sign stating "No Parking, Private Property" is posted principally to keep nearby beauty parlor customers off the property. There is access from the lot directly onto one street and through a driveway onto a second street. Access to the driveway entrance is blocked during the day but not at night. At the time defendant was apprehended by the police he was moving a friend's car that was parked in the wrong section of the property to another part of the lot. It is uncontested that defendant was not attempting to leave the property and that he was on the revoked list on that date.

Defendant appeals both convictions, contending that N.J.S.A. 39:4-50(b) and N.J.S.A. 39:3-40 do not apply to private property not devoted to public use.

N.J.S.A. 39:4-50(b) provides in pertinent part:

A person who operates a motor vehicle while his ability to operate such motor vehicle is impaired by the consumption of alcohol shall

be subject, for a first offense, to a fine of not less than $50.00 nor more than $100.00 and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of 6 months from the date of his conviction.

In earlier cases we held that the drunk or impaired driving statute applied to the operation of vehicles on private property to which the public had access. State v. Gillespie , 100 N.J. Super. 71 (App. Div. 1968), certif. den. 51 N.J. 274 (1968); State v. Sisti , 62 N.J. Super. 84 (App. Div. 1960). But we broadened this holding in State v. Magner , 151 N.J. Super. 451, 453 (App. Div. 1977), to include the drunken or impaired operation of a vehicle irrespective of where it took place, stating that "[t]he failure to include language limiting the offense to public streets and highways persuades us that it was the intention of the Legislature to deal with drunken operation of a motor vehicle, irrespective of where it took place." We further reasoned that the nature of the property on which the driving occurred is irrelevant since there is "no less threat of extraordinary danger of injury to the driver and others or damage to property because that particular folly is performed in a private place than it would were it to occur in a quasi -public or public place." Id. at 454. Accordingly, we affirm defendant's conviction for violation of N.J.S.A. 39:4-50(b).

Defendant challenges his conviction for driving while on the revoked list in violation of N.J.S.A. 39:3-40 on the ground that N.J.S.A. 39:3-10, which provides in part that "(n)o person shall drive a motor vehicle on a public highway in this State unless licensed to do so in accordance with this article," must be read in pari materia with N.J.S.A. 39:3-40 so as to imply a requirement that a person ...


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