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The Element of Operation in a DWI Case

Lakewood NJ DUI Attorney

A fundamental element of every DWI case is proof beyond reasonable doubt of operation. In most cases, this requirement will not be an issue based on the arresting police officer's actual observation of the defendant operating a car, truck, motorcycle or other motor vehicle. Our attorneys encounter many cases every year where direct knowledge of operation is lacking and a DUI is based on circumstantial evidence, for example, the defendant was the only one in the area of an accident or was found sitting behind the wheel.

The attorneys at our firm are savvy advocates that have successfully litigated countless operation issues throughout Ocean County. We fully appreciate how police can leap to judgement by concluding that you were driving or intended to drive. We have learned that it isn't just about the keys being in the ignition but rather a much more complex element that can be attacked effectively by a knowledgeable DWI lawyer. If you would like to speak to one of our former prosecutors or the head of our DUI team, Colin Bonus, contact our office at (732) 286-6500 for a free consultation. The following are answers to common questions in cases where operation is at issue.

What Does The Prosecutor Need to Show to Prove Operation?

The state is required to prove that you either operated the vehicle or had an intention to engage in operation. The most common reoccurring scenario on this issue is the motorist sleeping behind the wheel. While police are often quick to write a DWI ticket or summons when they discover someone intoxicated in this situation, the truth is that these facts or the keys being in the ignition of a car is simply evidence of an intent to operate. The fact that the car is running is not, in and of itself, determinative on operation. It is only indicia of operation and may be refuted with other evidence, for example, the seat being fully reclined. 

How Can the State Prove Operation?

There are three ways to prove operation. As previously stated, operation is typically established through direct testimony from a police officer or witness. Another form of direct evidence is a videotape. The second method for proving operation is circumstantial evidence. This is evidence that triggers an inference that the defendant was operating the car. Finding the motorist behind the wheel at an accident scene is a classic example of circumstantial evidence of operation. The third avenue that can be take to prove operation is admission by the defendant that he/she was driving the vehicle.

Can The Police Prove Operation If the Car Is Incapable of Being Moved?

No. If movement of the vehicle is impossible, operation cannot be established under N.J.S.A. 39:4-50. The truck, car or motorcyle must be capable of being moved or there is no "driving" as contemplated in the New Jersey DWI Law.

Does The Vehicle Need to Be on a Roadway for Operation to Occur? No. You may be convicted of DWI if you operate a motor vehicle anywhere in New Jersey including private property. Lacey NJ DWI Defense Attorneys

If you are searching for a lawyer to defend you in this county, Law Offices of Jonathan F. Marshall is certainly well qualified to represent you. We have been successfully representing clients charged with DWI for more than 100 years collectively with many dismissals based on the defense of lack of operation. To speak to an attorney about the motor vehicle stop, encounter with the arresting officer and everything else that occurred during the course of your arrest, contact us at (732) 286-6500.

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What Clients Say About Our Ocean County Criminal Defense Attorneys
Exemplary attorneys. I hired them for a DUI and an expungement. I was happy with the results for both cases. Special thank you to Samera for always answering all of my calls and questions JC
I'm 45 years old and this was my first time ever getting in trouble with the law. I was in need of a lawyer and after careful research, I called John F. Marshall Attorneys and was introduced to Abe Basch. Abe was professional, supportive and very thorough. I had three charges against me, one civil and two criminal. I was so scared and expressed that to Abe. The first day I had to go to court, I was an absolute nervous wreck but Abe prepped me and kept my anxiety levels down by going over the process of the courts thoroughly with me. He fought to get my charges dismissed and won all three cases (two court appearances). Abe is positive, confident and he ensured I felt the same way. I'd like to say thank you to Abe for working so diligently on my cases to get them dismissed. I feel like a weight has been lifted off my chest! I highly recommend Abe for any charges you may be faced with. Rose C.
I was out of state on a family emergency and I had to retain council asap as a boy friend was sitting in county jail with the new no bail point system and Mr marshal and staff made me feel Soo much better knowing that my detained loved one was in such great hands! He spoke to me as I was outta state kept in touch allowed me to work out payment due to the situation and just all out the difference in my bfs voice alone with all the medical problems and such he was going threw sounded better than he had since the first day he was there and was Soo happy that Mr marshal went that day retained to see him in the jail and have him ready for court which wasn't supposed to be till Friday but again Mr marshall and team got it so we can get him now on wendsday and all I have to say is if your looking for a real down to earth lawyer that will work with you and help in anyway possible and I can't for get the team at the office TONI and everyone else thank you again I'd give 100 stars if I could! Nicole J.
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