In order to be convicted for a drunk driving offense in New Jersey, the state must demonstrate that a suspect has violated the statute. The burden of proof is on the prosecutor to prove both, that the suspect was intoxicated, and that they were operating a motor vehicle while they were intoxicated.

Often in trials concerning drunk driving charges, the issue is whether or not the prosecution has adequately shown intoxication. There are many potential errors or failures on the part of law enforcement that can return a false positive for intoxication. This may include miscalibrated testing equipment, inadequate training of the officers charged with administering the test, or some other problem with the testing procedure. The other half of the prosecution’s burden does not always get as much notice, was the suspect actually operating the vehicle.

When a police officer pulls over a car that is driving down the road, it usually easier for the prosecution to demonstrate that the suspect was operating a vehicle. But arrests do not always arise from this scenario alone. In some cases the police never actually see the person driving the car, they are only able to infer that they have done so based on the circumstances.

It is not difficult to imagine a scenario when a person drives to a sporting event or campsite before consuming any alcohol, then has a few drinks, and gets into their car to turn on the radio or get something out of the glove compartment. If a police officer should happen upon the scene at that point they may assume that the driver had operated a motor vehicle while intoxicated when they in fact had not.

In most cases, drunk driving arrests are the result of being pulled over after an officer observes what he or she alleges to be erratic driving. As we mentioned recently in this blog, sobriety checkpoints can cast a wider net by stopping all drivers without any prior indication that the driver may be intoxicated. In some cases however three may be a question as to whether the alleged ‘drunk driver’ was driving the car at all.

A recent news article includes a number of examples in which a person was charged with a DUI even though most people would not consider them to be driving. One example was a New Jersey camper who had was sleeping in the back of his pickup truck at a campsite. When the police apparently discovered that he was intoxicated he was charged with driving while intoxicated.

It is not difficult to imagine a scenario where a person has drank a sufficient amount of alcohol to be legally impaired. They determine that they should not drive home and decide instead to call a friend or a taxi to come and pick them up. If it is cold or even if they just want to listen to the radio, they may put the keys in the ignition and even start the engine. Never taking the car out of park and not having any plans on driving.

If a police officer decides to stop and check on the idling car, it is possible that they will determine that you have actual physical control of the vehicle while intoxicated and attempt to bring charges against you.

Of course one should never drive while intoxicated, but it may also be prudent to be mindful of the risk of even being in the vicinity of your vehicle after you have been drinking. If you need help with a DUI charge, call our Atlantic City DUI Lawyers today.


The Record Searchlight “Cop Talk: DUI can happen to person inside vehicle” Monty Hight, Aug. 20, 2011

Pearl River Patch, “N.J. Man Found Asleep At The Wheel In Pearl River Charged With DWI,” Ryan Buncher, Feb 12, 2012