The State has the burden of proving beyond a reasonable doubt that a defendant was driving while intoxicated. State v. Grant, 196 N.J. Super. 470, 477 (App. Div. 1984). N.J.S.A. 39:4-50 specifically applies to a person who operates a motor vehicle while under the influence of intoxicating liquor . . . . (Emphasis added). The term operate must be given broad construction. State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993). Actual operation is not required to satisfy the element. Ibid.; State v. Sweeney, 40 N.J. 359, 360-61 (1963). Operation may be proved by any direct or circumstantial evidence as long as it is competent and meets the requisite standards of proof. State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). Operation may be proved by actual observation of the defendant driving while intoxicated, State v. Prociuk, 145 N.J. Super. 570, 573 (Law Div. 1976); by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, State v. Mulcahy, 107 N.J. 467, 476 (1987); Morris, supra, 262 N.J. Super. at 419-20; Sweeney, supra, 77 N.J. Super. 512, 521 (App. Div. 1962); State v. Witter, 33 N.J. Super. 1, 5-7 (App. Div. 1954); or by defendant¹s admission, State v. Hanemann, 180 N.J. Super. 544, 547 (App. Div.) (affirming defendant¹s conviction based upon his admission that he had been driving earlier that night after the police found his empty overturned vehicle on the highway), certif. denied, 88 N.J. 506 (1981); State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974) (affirming defendant¹s conviction based on his admission to drinking and driving when the police woke him up in his parked car on Interstate 287); State v. Guerrido, 60 N.J. Super. 505, 509 (App. Div. 1960) (affirming defendant¹s conviction based on the testimony of two witnesses that he was intoxicated and his admission to police that he had been driving after his car was found buried full length in some shrubbery and lilac bushes.)
The Appellate Division in State v Ebert 377 N.J. Super. 1 (App. Div. 2005) recently detailed the proof required by the state. 1. The state has the burden of proving beyond a reasonable doubt that a defendant was operating a motor vehicle while intoxicated. N.J.S.A. 39:4-50. "Operation" may be proved by actual observation of the defendant driving while intoxicated, by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, or by the defendant's admission. 2. Defendant's .27 percent BAC, along with the fact that she had driven to the parking lot of a restaurant on a major state highway, Route 46 in Denville, was sufficient to sustain her conviction for reckless driving. Conclusion If charged with Driving While Intoxicated, immediately schedule an in-office appointment with a trial attorney. Don't rely on a real estate attorney, public defender or a family member who simply attended law school. When your driving privileges and ability to drive to work is on the line, hire an experienced attorney.