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State v. Derby

Decided: March 30, 1992.

STATE OF NEW JERSEY, PLAINTIFF,
v.
JASON B. DERBY, DEFENDANT



Serata, J.s.c.

Serata

SERATA, J.S.C.

Jason Derby was convicted by the Commercial Township Municipal Court of N.J.S.A. 39:3-40 -- operating a vehicle while suspended; N.J.S.A. 39:6B-2 -- operating an uninsured vehicle; and, N.J.S.A. 39:3-4 -- operating an unregistered vehicle, thus requiring the following penalties: N.J.S.A. 39:3-40 -- fine of $500.00, plus costs and suspension of his driving privilege for 6 months; N.J.S.A. 39:6B-2 -- a fine of $300.00, plus costs, suspension of his driving privilege for one year, and 15 days community service; N.J.S.A. 39:3-4 -- a fine of $20.00 plus costs, ATS surcharge of $1.00.

The issue of operation has only been considered in a few New Jersey cases. In the case at bar, the issue is whether defendant while occupying a vehicle under tow, without an engine was operating his motor vehicle within the meaning of N.J.S.A. 39:3-40, N.J.S.A. 39:6B-2, and N.J.S.A. 39:3-4. This court's research does not find a statutory definition for "operation".

N.J.S.A. 39:1-1 does however define "operator" as follows: " Operator " means a person who is in actual physical control of a vehicle or street car.

From the Municipal Court record this court finds the facts as follows: On July 22, 1991 defendant was observed by a New Jersey State Trooper in a vehicle that was being towed northbound on Hemlock Road in Laurel Lake, Commercial Township. The trooper observed the vehicle turn onto Dandelion Road at which point the vehicle's turn indicators and brake lights were engaged. The trooper testified he observed the defendant sitting behind the steering wheel of the vehicle in tow and opined that defendant was steering the vehicle. The record below also reveals that there was no engine in the towed vehicle. It is interesting to note that although the tow was illegal, there was no citation issued.

This court is thus faced with this issue. Whether occupying a vehicle while under tow, without an engine may be considered "operation" thereof within the meaning of the statute, if so, whether under the facts of this case, defendant's actions justify a conviction.

We find no New Jersey case law considering whether a vehicle in tow and incapable of being propelled under its own power fits into the definition of operation as set forth in N.J.S.A. 39:1-1 which is a requisite element necessary to obtain a conviction under N.J.S.A. 39:3-40, 39:3-4, and 39:6B-2. This question has, however, been considered by courts outside this jurisdiction and there are several cases on point. A person steering a disabled motor vehicle which is being towed by another car is not operating a motor vehicle within the meaning of a statute requiring such an operator to be licensed. Dewhirst v. Connecticut, 96 Conn. 389, 114 A. 100 (1921) This was a similar situation albeit a civil case. In Dewhirst, a motor vehicle had been towed for 25 miles, the person in that vehicle was sitting behind the steering wheel while the vehicle was being towed and was totally helpless so far as directing the

course or conduct of such car. The court in Dewhirst held that the person in the vehicle being towed was not operating the vehicle. Courts have been struggling with the definition of "operation" since horse-drawn vehicles were replaced by motor vehicles and it seems that we may not be getting any closer to the solution of this problem. A person who manipulates the controls of a car with no engine cannot be said to be operating such a car. State v. Swift, 125 Conn. 399, 6 A.2d 359 (1939). For further case law see; State v. Ferrenti, 22 Conn.Supp. 494, 175 A.2d 378 (1961); State v. Duggan, 290 Or. 369, 622 P. 2d 316 (1981).

The few New Jersey cases interpreting the definition of "operator", N.J.S.A. 39:1-1, fall into two distinct categories. First, the definition that has developed under N.J.S.A. 39:4-50, Driving Under the Influence of Alcohol. "Operation" in this context has been broadened to address societal concerns caused by the damages that drunk drivers inflict on this State's roadways. Second, a less restrictive definition that has been applied to motor vehicle code and insurance violations promulgated under those sections of the New Jersey Statutes Annotated.

In State v. Sweeney, 77 N.J. Super. 512, 520, 187 A.2d 39 (App.Div.1962) the court addressed the issue of whether for the purposes of N.J.S.A. 39:4-50, the statutory definition of operation only envisioned those situations where the operator actually drives the vehicle. The court held it did not, and adopted a broader approach. Where the acts of the operator demonstrate physical control of the vehicle and those acts demonstrate an intent to put the vehicle into motion then the defendant operated the vehicle. The defendant in Sweeney entered the vehicle, turned on the ignition, started the motor in operation while behind the steering wheel. It is this control which justifies the inference of intent to operate. In State v. Prociuk, 145 N.J. Super. 570, 368 A.2d 436 (1976) the Court held there were three basic ways to show "operation" within the meaning of the statute proscribing operation of a motor vehicle while impaired: observation by the arresting officer, evidence of intent to drive [256 NJSuper Page 706] while in physical control of the vehicle, or confession by defendant that he was driving. There is also a requirement that the vehicle must at least be operable. In Prociuk the defendant was found within 150 yards of a vehicle which was, at the time the arresting officer arrived, temporarily inoperable due to lack of gas. Defendant disclosed to the arresting officer that he had just run out of gas on the ramp and he wanted the officer's assistance in obtaining more gas. The court determined it was clear from the defendant's statements to the officer that he was driving the vehicle shortly before his arrest, thereby sustaining a conviction of operating a motor vehicle while impaired. In State v. Jeannette, 172 N.J. Super. 587, 412 A.2d 1339 (Law Div.1980) the court held that intentional movement of a motor vehicle without engine power is sufficient operation to fall within the definition of operation as required under N.J.S.A. 39:4-50. The defendant in Jeannette was sitting on the seat of his motorcycle riding it down a slight incline for a short distance. The court went on to state that the public is to be protected from the operation by an intoxicated driver of a motor vehicle that has been placed in motion, whether powered by its engine or by gravity. In State v. Grant, 196 N.J. Super. 470, 483 A.2d 411 (App.Div.1984) police officers responded to a report pertaining to a suspicious vehicle possibly occupied by an intoxicated driver. Upon their arrival they observed a vehicle occupied by defendant, parked along the shoulder of the road with the defendant asleep ...


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