New Jersey Criminal Lawyer Blog

You would think that if you are driving a car, you are operating a vehicle. It is not, however, in the context of DUI/DWI, and there is case law to address the issue.

N.J.S.A. 39:4-50 provides in pertinent part: "A person who operates a motor vehicle while under the influence of intoxicating liquor...or operates a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in defendant's blood...shall be subject [to certain enunciated penalties](emphasis added)." New Jersey courts have argued for many years over exactly what actions taken by a defendant will be construed as "operation" of a vehicle pursuant to the statute. In 1985, the New Jersey Appellate Division reviewed the principals derived from earlier and sometimes conflicting cases, synthesized two of the leading New Jersey Supreme Court cases and set forth the following standard:
[W]hen one in an intoxicated state places himself behind the wheel of a motor vehicle and not only intends to operate it in a public place, but actually attempts to do so (even though the attempt is unsuccessful) and there is the possibility of motion, he violates the [drunk driving] statute. State v. Stiene, 203 N.J.Super. 275 (App.Div. 1985)(footnote omitted)(emphasis added). Please see, State v. Daly, 64 N.J. 122 (1973); State v. Sweeney, 40 N.J. 359 (1963); State v. Morris, 262 N.J.Super. 413 (App.Div. 1993).

The New Jersey Supreme Court has utilized a definition of "operation" derived from "What Constitutes Driving, Operation, or Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute or Ordinance." 93 A.L.R. 3d 7, 16-17 (1979), stating, "The term 'operate', it has been held, includes merely controlling the vehicle and is intended to forbid persons from doing anything with regard to the mechanism of a motor vehicle, whether it has any effect on the engine or not. Similarly, it has been held that a person begins to operate the instant he begins to manipulate the machinery of the vehicle for the purposes of putting the car in motion, and that 'operates' refers to the actual physical handling of the controls of a vehicle." State v. Mulcahy, 107 N.J. (1987).

In the leading case of State v. Daly, above, the Court held that a defendant who, after exiting a bar, entered his vehicle in order to sleep off the intoxicated state under which he was affected, was not guilty of driving while intoxicated. During the course of that defendant's sleep, he was awakened by the cold and turned on the car's engine in order to utilize the heating system. When the officer noticed the running vehicle and went to investigate, he had to awaken the defendant in order to question him. The Court found that there must be some evidence of a defendant's intention to move the vehicle before he could be convicted of driving while intoxicated. The other leading case in this area, State v. Sweeney, above, stands for the proposition that a defendant who is inside a vehicle, with the engine running and has no other apparent purpose for being as such, is assumed to be in operation of the vehicle. The Supreme Court inferred that such a defendant must have the intention of moving the vehicle when positioned thus in a running vehicle.

The cases that involve defendants who were found guilty of driving while intoxicated where the vehicles are not moved at all, at the very least describe the defendant as being located inside the car when the police officers investigate. No case involves a defendant found guilty where he is outside of a vehicle that had been parked in his driveway and is not even running. Details are crucial, from a legal perspective, and a skilled attorney can use them to build your best defense.

Sometimes a simple disorderly persons offense can lead its way to the 3rd degree assault on a police officer. This is what happens when you lay your hands on a police officer or in this instance squirt a substance, or bodily fluid, at a cop. Here, a Kentucky woman was being jailed for public intoxication, but she decided to express her displeasure by squirting breast milk in the face of a female police officer while she was changing into the intimate clothes. Her judgment was obviously impaired, but this was a big mistake because instead of probably merely paying a fine, this woman will face a potential criminal record and even jail time.

A common misconception out there is that you must punch or strike someone to qualify for criminal assault. This is simply not the case. As strange as it sounds squirting breast milk at someone can qualify as criminal assault because all that is necessary is that an actor makes contact with someone. The contact can be with your fist, a weapon, or in this case bodily fluid. To make matters worse, this woman assaulted a police officer, which usually carries a stiffer penalty than if she had done this to her neighbor or co-worker. While, Kentucky is a different jurisdiction than New Jersey of course, the laws are most likely similar in dealing with assault on law enforcement officers. This will be a rather expensive legal lesson for this Kentucky woman, but a good tutorial for everyone else out there. Remember when you are around police officers keep your hands, feet, and breast milk to yourself, and always retain an attorney if your behavior has been perceived as an assault.

For the second time in 12 months, Steelers Quarterback Ben Roethlisberger finds himself responding to questions about sexual assault. However, this time the woman did not wait a full year to report the crime.

During the late summer of 2009, a Reno casino employee accused Roethlisberger of sexual assault for an alleged incident that occurred in 2008. This woman filed a civil law suit in attempt to get money from Big Ben. This is much different matter. A woman claims she was assault last night and has filed criminal charges with local police in Georgia.

Naturally, this matter is in infancy, but the first few hours are critical in a sexual assault criminal investigation. Here reports indicate that the victim has already gone to the hospital where an forensic evidence will be gathered and she has told her story to police. The two-time Super Bowl champion QB will also be questioned, and he can choose to either refuse or answer the questions. Regardless of guilt or innocence, it is generally advised not to answer questions without a lawyer present.

As the police continue to gather information, it is important to remember that is an ongoing investigation. The fact that someone brought charges does not mean the police have to follow through with them. Rather the police must investigate the matter and if they find probable cause that alleged assault occurred then they can filed chargers against the Steelers QB.

Charges of a drug-fueled rape of a potential client do not do much to help the legal profession. Mr. Al Garcia's rape trial began with his accuser's testimony that when she appeared for a consultation for his legal services one evening, she was instead offered cocaine, raped and forced to perform sexual acts. While three others have come forward to testify that Mr. Garcia attempted to trade legal services for sex, the defense has offered evidence that shows no signs of force or injury in the medical report taken after the alleged attack.

While this story leaps of the page due to the "shock value" the case may still be a difficult for prosecutor's to prove based on the facts that have been publicized. This case ultimately comes down to the credibility of both the victim and the attorney. This is because the attorney's defense is not a denial that sexual acts occurred, but rather that the sexual acts were consensual. The fact that Judge is allowing three witnesses to testify appears to undermine the defense. Witness testimony like this can backfire, though, because the defense may argue that the victim in this case was accepting the attorney's offer. However, the fact that the attorney was allegedly using narcotics really damages the attorney's image for the jury. The jury is going to have to weigh the evidence, and the drug use may be a factor is convincing a jury that the attorney did sexually assault the victim and that there was no consent. An experienced attorney can determine the strongest defense against these types of charges, with extremely sensitive and nebulous circumstances, based upon the specific facts of each individual case.

In addition to the State trial, Garcia has been convicted in Federal Court as well for distribution of cocaine and methamphetamine, though the State jury will not know this, at least until the trial is over. Regardless of the outcome of the state trial, Garcia faces attorney discipline including potential disbarment. His law license has already been suspended, and he will probably be looking for a new line of work. The only question is whether he'll have a stopover in the state prison.