New Jersey judges have issued precedent-setting review of the law governing DWI cases in the Garden State.

In a decision this month upholding a DWI conviction, an appellate panel seeks to settle this question once and for all: The state’s driving while intoxicated law does not require someone to actually be driving when they're busted.

“The car does not actually have to be driven in order to be convicted under the driving while intoxicated statute because that statute only requires the intent to operate a vehicle while under the influence,” said Bob Bianchi, a criminal trial attorney and former Morris County prosecutor.

"This court uniquely said, 'Listen, we’re putting this opinion out here because we keep getting these appeals and it seems like nobody is getting it,'" he said.

“If you’re under the influence, don’t get near a car, period. That’s what they’re trying to emphasize.”

The decision denies an appeal by John Thompson, who was convicted by a Municipal Court and sentenced to a two-year license suspension. In September 2017, police found Thompson asleep behind the wheel of his running car at a 7-Eleven in Wanaque. Officers said they smelled alcohol on his breath and arrested him after he failed field sobriety tests.

In his appeal, Thompson argued that he was not "operating" his vehicle.

It's an argument that other people have tried to make before judges in New Jersey to no avail.

In fact, state courts have had to deal with this question at least seven times in the last 12 months.

As the judges in this case reiterated, the DWI law does not require that prosecutors prove whether someone was actually driving a car.

"Indeed, the [state] Supreme Court has held that an individual who staggers out of a tavern but is arrested before he is able to insert a key into his vehicle's ignition may be convicted," the judges said in the seven-page decision.

"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."

The decision says that "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 the law.

Bianchi said that DWI cases, where the drunk driver kills someone in an accident, were the worst kinds of cases he had to deal with “because otherwise very decent people wound up getting involved in something like that and they can go to jail for 10, 20 years.”

Bianchi said that when he started as a young prosecutor, the plea deal for DWI fatality could involve probation or less than a year in the county jail. Since then, penalties have been substantially ramped up.

“This is a law that both protects the community from being victimized as well as the people who wind up getting behind the wheel from getting involved in something where they could go to jail for a significant period of time," he said.

You can contact reporter David Matthau at

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