DWI Acquittal When State Failed To Prove Operation Of Vehicle

Wardell Harvey was convicted of driving while intoxicated (DWI) contrary to N.J.S.A. 39:4-50. At sentencing, he was sentenced as a 3rd offender including jail for 180 days, 10 year loss of license, required an interlock device on his vehicle for 1 year following restoration of his driving privileges and fines. At his municipal court trial, the Defendant testified that he procured five 24oz cans of beer on the way to his doctor where he was to learn whether he required back surgery. He was stopped by Officer Clerico of the Somers Point Police Department on the way to his doctor for speeding and an illegal turn. The officer further testified that, during the motor vehicle stop on the way to the doctor's office, he detected no odor of an alcoholic beverage when speaking with Harvey. Upon arrival at the doctor's office, Harvey consumed less than 2 cans of beer in the parking lot while seated in his vehicle. Following his appointment, according to the defendant, he was anticipating the arrival of a Ms. Bowen who worked in a nearby building and to whom the vehicle belonged as she would be driving him home. Prior to his returning to the vehicle, after receiving a call from someone in the doctor's office about an intoxicated patient preparing to leave the office, police stopped Harvey to question him about driving under the influence. Officer Cunningham smelled alcohol on the Defendant's breath, observed an open beer in the cup holder of the truck Harvey drove and found the keys in the truck's ignition. Harvey admitted to consuming alcohol but denied any wrongdoing. Both sides believed that State v. Snyder, 337 N.J. Super 59, (App. Div. 2001) regarding post-operation consumption of alcohol was the controlling case. The municipal court judge decided the State had met its burden of proof as to evidence of operation in a preliminary Rule 104 Hearing. Ultimately the Defendant pled with the admission of consumption of alcohol but without admission of operation. In State v. Harvey, the Law Division judge, on trial de novo, held that the evidence was insufficient to support a conviction with regard to operation prior to the doctor's appointment but sufficient to support a conviction based on his intent to drive following his doctor's appointment under State v. Mulcahy, 107 N.J. 467 (1987). On appeal, it was held that the Rule 104 hearing was inappropriate and testimony elicited therein violated the hearsay rules. Additionally, the Appellate Division held that, under Mulcahy, Harvey could not be required to submit to Alcotest testing based on the belief that "[he would] operate a motor vehicle at some time in the near future." Finally, the State changing its argument from operation prior to the doctor's appointment in municipal court to constructive operation after the doctor's visit in the Law Division was fundamentally unfair and that "appellate courts affirm or reverse judgments and orders, not reasons" Isko v. Planning Bd. of the Twp. of Livingston, 51 N.J. 162, 175 (1968). The NJ Appellate Division reversed Harvey's conviction for driving under the influence (DUI) and remanded the matter to the Law Division for a judgment of acquittal. DWI is a very serious offense with substantial consequences including jail and loss of driving privileges which may result in loss of your job and other consequences. If you are facing DUI charges, you should obtain an experienced DUI defense attorney immediately. For more information about DUI, Driving While Intoxicated (DWI), underage DUI, drug DUI, controlled dangerous substance (CDS) in a motor vehicle or other serious driving infractions in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.