You Can be Busted for DUI in New Jersey Even if You're Parked
You should be aware that you can be arrested for Driving under the Influence (DUI) even if you're parked at the time.
In the 1992 New Jersey case of State v. George, Ronald George was convicted in Patterson Municipal Court of operating a motor vehicle while intoxicated. For this third DWI conviction, he was sentenced to 90 days in jail and ordered to perform 90 days of community service. He also was fined $1,000 and had his license revoked for 10 years.
At 11:45 pm on the night he was arrested, George was in his pickup truck. He was stopped in a parking lot, not in a normal parking space, with his headlights on and the engine running.
He was seen by a police officer talking to a female pedestrian in a high crime area known for prostitution.
The officer asked to see George's license and registration and insurance card. He detected a heavy odor of alcohol on George's breath. George acknowledged that he'd been drinking and the officer arrested him.
A Breathalyzer test showed that George's blood alcohol content was .13% -- above the legal limit.
That may seem like an oxymoron and unfair: how can you be busted for DRIVING under the Influence if you're not actually driving?
Actually, the law doesn't say "driving," it says "operating."
Under New Jersey law, you may not "operate" a motor vehicle if your blood alcohol content (BAC) is .08% or higher.
If you're sleeping in a parked car at the side of a road, and if you're in the driver's seat with the keys in the ignition, you may be considered to be in "actual physical control" of your car - even if it's not in motion and you're passed out.
A police officer who taps on your window to wake you up may give you a Breathalyzer test or other sobriety tests. If you're over the legal limit, you may find yourself with a ticket for DUI.
The more "ready" you are to drive, or the more obvious it is that your drove drunk to get to the point where you stopped, the more likely you are to be ticketed for DUI even though you're not seen driving.
For example, in one case the car was stopped in a traffic lane, facing the wrong direction, with the lights on, and with the driver's foot on the brake - showing that the driver could have driven off at any moment.
However, if you're properly parked in a safe location (such as a parking lot), your car is off, the keys are not in the ignition, and you're not in the driver's seat, you're more likely to be found to not be "operating" the car. Getting in the back seat and putting your keys in your pocket or purse is even stronger evidence that you're not about to drive.
Beating Drunk Driving Charges in Court
You don't have to passively accept a ticket for DUI, especially if a police officer never actually saw you driving.
You may be able to prove that you weren't in a position to drive and that you weren't actually intoxicated at the time you were tested.
For example, you or your lawyer may be able to show that the device used to measure your BAC was not calibrated or used properly.
Our firm can advise you on your rights and help you with the legal process when you've been arrested for DUI.
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The Law Offices of Marc B. Schram, P.C. serve Ocean, Monmouth and Middlesex county businesses and individuals. For experienced representation, call (732) 888-4400 or contact us online to schedule your free initial consultation. We look forward to hearing from you.
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