STATE OF NEW JERSEY VS. JOHN THOMPSON (6184, PASSAIC COUNTY AND STATEWIDE) ( 2020 )


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  •                NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2011-18T4
    STATE OF NEW JERSEY,
    APPROVED FOR PUBLICATION
    Plaintiff-Respondent,
    February 10, 2020
    v.                                         APPELLATE DIVISION
    JOHN THOMPSON,
    Defendant-Appellant.
    ________________________
    Submitted January 28, 2020 – Decided February 10, 2020
    Before Judges Fisher, Accurso and Gilson.
    On appeal from the Superior Court of New Jersey, Law
    Division, Passaic County, Municipal Appeal No. 6184.
    Law Offices of James A. Abate, LLC, attorneys for
    appellant (James Alexander Abate, of counsel and on
    the brief).
    Camelia M. Valdes, Passaic County Prosecutor,
    attorney for respondent (Christopher W. Hsieh, Chief
    Assistant Prosecutor, of counsel and on the brief).
    The opinion of the court was delivered by
    FISHER, P.J.A.D.
    In appealing his convictions for operating a vehicle while under the
    influence, N.J.S.A. 39:4-50(a), and for refusing to submit to a breath test,
    N.J.S.A. 39:4-50.2, defendant argues that the evidence does not support the
    statutory requirement of "operat[ing]" the vehicle when the record reveals he
    was found sleeping behind the wheel with the engine running. In affirming, we
    reject this argument because it is inconsistent with the well-established manner
    in which "operation" has been defined.
    Defendant was convicted by a municipal court and again, via municipal
    appeal, by the Law Division of violating both N.J.S.A. 39:4-50(a) and N.J.S.A.
    39:4-50.2. A two-year license suspension was imposed. In appealing to us,
    defendant argues:
    I. . . . THERE WAS NO EVIDENCE PRESENTED
    THAT DEFENDANT OPERATED HIS VEHICLE
    UNDER THE INFLUENCE OF ALCOHOL, [OR]
    THAT HE FORMED A CONSCIOUS INTENTION
    TO DO SO.
    II. THE MUNICIPAL COURT COMMITTED
    REVERSIBLE   ERROR BY  FAILING  TO
    DISQUALIFY [THE STANDARDIZED FIELD
    SOBRIETY TESTS] DUE TO DEFENDANT’S
    MEDICAL ISSUES.
    III. THE MUNICIPAL COURT COMMITTED
    REVERSIBLE ERROR BY ADMITTING THE
    ALCOTEST INFLUENCE REPORT DESPITE TIME
    INCONGRUITY.
    A-2011-18T4
    2
    IV. THE EFFECT OF THE CUMULATIVE TRIAL
    ERRORS     IN  THE   CONTEXT   OF  THE
    PROCEEDINGS BELOW DEPRIVED DEFENDANT
    OF A FAIR TRIAL AND WARRANT REVERSAL.
    We find insufficient merit in Points II, III, and IV, to warrant further discussion
    in a written opinion. R. 2:11-3(e)(2). We reject defendant's first point for the
    following reasons.
    The main issue concerns whether the factual record supported the Law
    Division judge's determination that defendant was "operating" the motor vehicle
    within the meaning of N.J.S.A. 39:4-50(a). Our limited scope of review requires
    deference to the Law Division judge's findings of fact; indeed, in matters that
    originate in municipal court, appellate deference "is more compelling," and we
    "ordinarily" will not "undertake to alter concurrent findings of facts and
    credibility determinations made by two lower courts absent a very obvious and
    exceptional showing of error." State v. Locurto, 
    157 N.J. 463
    , 474 (1999); see
    also State v. Stas, 
    212 N.J. 37
    , 49 n.2 (2012).
    The record included evidence from which the Law Division found that
    police officers were called to and arrived at a 7-Eleven in Wanaque on
    September 7, 2017, around 10:30 p.m., because a male – the defendant – was
    observed sleeping in his car in the parking lot. The car's engine was running.
    The officers observed a half-eaten sandwich and prescription bottles on the front
    A-2011-18T4
    3
    passenger seat, and as the officers woke defendant, they smelled a "strong odor
    of alcoholic beverage." Defendant said he had been sleeping for about thirty to
    forty minutes. In response to the officers' inquiries, defendant acknowledged he
    had had "a couple of drinks." After unsatisfactorily performing a several field
    sobriety tests, defendant was arrested. He later acknowledged at the police
    station that he was under the care of a physician and was prescribed Methadone,
    Hydrocodone, Xanax, and Cymbalta. He also admitted he had two drinks within
    a three-hour period. After careful review of the record, we are satisfied there
    was ample evidence from which the fact finder could conclude that defendant
    was intoxicated when he was sleeping behind the wheel of his parked car. The
    sole question we focus on is whether an intoxicated individual, seated behind
    the wheel of a vehicle with its engine running, is in violation of N.J.S.A. 39:4-
    50(a).
    Although a violation of N.J.S.A. 39:4-50(a) is commonly referred to as a
    DWI violation ("driving while intoxicated"), the statute actually makes no
    mention of "driving" as a fact that must be proven in order to convict an
    individual of this offense.1 The statute instead prohibits "operat[ion]" of a
    1
    The publishers of New Jersey Statutes Annotated apparently included a title
    to the statute: "Driving While Intoxicated." That title, however, was not part
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    4
    vehicle while under the influence.2 "Operation" has been interpreted broadly,
    State v. Tischio, 
    107 N.J. 504
    , 513-14 (1987); State v. Mulcahy, 
    107 N.J. 467
    ,
    478 (1987); State v. Wright, 
    107 N.J. 488
    , 494-503 (1987); State v. Sweeney,
    
    40 N.J. 359
    , 360-61 (1963), and encompasses more than just "driving" a vehicle.
    Operation, for example, includes sitting or sleeping in a vehicle, with the engine
    running, even when the vehicle isn't in motion. Indeed, the Supreme Court has
    recognized that "operation" may be found from evidence that would reveal "a
    defendant's intent to operate a motor vehicle." 
    Tischio, 107 N.J. at 513
    . Thus
    an intoxicated person could be found guilty of violating N.J.S.A. 39:4-50(a),
    when running the engine without moving the vehicle, as here, or by moving or
    attempting to move the vehicle without running its engine, see State v. Stiene,
    
    203 N.J. Super. 275
    , 279 (App. Div. 1985). Indeed, the Supreme Court has held
    that an individual who staggers out of a tavern but is arrested before he is able
    of what the Legislature originally enacted, see L. 1921, c. 208, and was not
    included by the Legislature in any of its later amendments, including the most
    recent 2019 amendment, see L. 2019, c. 248, so, the title does not have the force
    of law. See Phillips v. State, Dep't of Defense, 
    98 N.J. 235
    , 244 n.3 (1985);
    State v. Malik, 
    365 N.J. Super. 267
    , 279 (App. Div. 2003); N.J.S.A. 1:1-6.
    N.J.S.A. 39:4-50(a) requires that we consider whether the defendant was
    "operating" a vehicle, not whether the defendant was "driving" the vehicle.
    2
    For that reason – and maybe to dissuade the public from the misconception
    that "driving" is required – we should perhaps refer to a violation as an "OWI"
    ("operating while intoxicated") instead of a "DWI."
    A-2011-18T4
    5
    to insert a key into his vehicle's ignition may be convicted of N.J.S.A. 39:4-
    50(a). 
    Mulcahy, 107 N.J. at 470
    , 483. In short, operation not only includes the
    circumstances to which we have just referred but may also be established "by
    observation of the defendant in or out of the vehicle under circumstances
    indicating that the defendant had been driving while intoxicated." State v. Ebert,
    
    377 N.J. Super. 1
    , 11 (App. Div. 2005). For example, we sustained a DWI
    conviction where the defendant was not even in her vehicle but instead was
    looking for her vehicle in a restaurant parking lot while in an intoxicated state.
    See 
    id. at 9-11.
    There is no doubt that an intoxicated and sleeping defendant
    behind the wheel of a motor vehicle with the engine running is operating the
    vehicle within the meaning of N.J.S.A. 39:4-50(a), even if the vehicle was not
    observed in motion; it is "the possibility of motion" that is relevant. 
    Stiene, 203 N.J. Super. at 279
    .
    As the Supreme Court held in Tischio – and it apparently bears repeating
    – "[w]e are thus strongly impelled to construe [the statute] flexibly,
    pragmatically and purposefully to effectuate the legislative goals of the drunk-
    driving 
    laws," 107 N.J. at 514
    , which, of course, are to rid our roadways of the
    scourge of drunk drivers, 
    id. at 512.
          See also 
    Mulcahy, 107 N.J. at 479
    (recognizing, in quoting State v. Grant, 
    196 N.J. Super. 470
    , 476 (App. Div.
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    6
    1984), that the drunk driver remains "one of the chief instrumentalities of human
    catastrophe"). This well-established legislative goal would be frustrated if we
    were to seek or encourage irrelevant distinctions between what occurred here
    and what the Supreme Court and this court has already found to be "operation"
    within the meaning of N.J.S.A. 39:4-50(a).
    In so holding, we readily acknowledge this opinion expresses nothing
    new. We have been driven to publish because of the extraordinary number of
    times the court has recently faced this precise issue. Seven other times within
    the last twelve months – each time by unpublished opinion – we have considered
    whether an intoxicated person, sleeping behind the wheel of a parked car with
    its engine running, can be convicted of N.J.S.A. 39:4-50(a).3 For the benefit of
    the public, as well as the bench and bar, we deem it appropriate to express our
    holding in a published opinion. See R. 1:36-2(d)(6).
    Affirmed.
    3
    See State v. Jerda, No. A-1154-18 (App. Div. Jan. 29, 2020); State v. Costa,
    No. A-2257-18 (App. Div. Dec. 2, 2019); State v. Fleming, No. A-2651-18
    (App. Div. Nov. 19, 2019); State v. Young, No. A-1320-18 (App. Div. July 3,
    2019); State v. Morcos, No. A-1939-17 (App. Div. June 21, 2019); State v.
    Yakita, No. A-2589-17 (App. Div. May 29, 2019); State v. Wendler, No. A-
    0414-17 (App. Div. May 22, 2019). We cite these unpublished opinions not
    because they are of precedential value – they aren't, R. 1:36-3 – but to illustrate
    the reason for publishing this opinion.
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    7