Supreme Court of New Jersey.
STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant,
Eugene F. MULCAHY, Defendant-Appellant and Cross-Respondent.
Argued Nov. 3, 1986.
Decided June 30, 1987.
Defendant was convicted in the Cresskill Municipal Court of refusing to submit to a breath test and of operating a motor vehicle while under the influence of intoxicating liquor. On appeal de novo, the Superior Court, Law Division, Bergen County, again convicted. On appeal, the Superior Court, Appellate Division, 202 N.J.Super. 398, 495 A.2d 166, affirmed in part and reversed part, and petitions for certification of the State and defendant were granted. The Supreme Court, O’Hern, J., held that police officers, who saw defendant, who was drunk, stagger out of tavern into car that was illegally parked on sidewalk, could arrest defendant for purposes of submission to sobriety test when defendant started to put keys in the ignition.
Affirmed in part and reversed in part.
Clifford, J., filed an opinion in support of reversal in part and affirmance in part.
 This case concerns the point at which an actor’s conduct ripens into the operation of a motor vehicle sufficient to require submission to a breathalyzer test for suspected intoxication. The circumstances here will rarely, if ever, be repeated. The question put to the municipal court, in a hypothetical form, was whether police officers, who see someone who is drunk stagger out of a tavern into a car that is illegally parked on a sidewalk, have to wait until the driver turns the ignition key before making the arrest that under N.J.S.A. 39:4-50.4a is predicate to requiring the driver to submit to the breathalyzer test. We think not and therefore reinstate the judgment of conviction for refusal to submit to the breath test.
The hypothetical posture of this case arises from an apparent desire on the part of the defendant not to have the details of his insobriety elaborated in the minutes of the local municipal court proceedings. Posing the question as a hypothetical was apparently intended to avoid any exaggerated description of the symptoms of insobriety. With a stipulation that we shall detail later, the defendant made a tactical choice at trial to base his defense entirely upon two propositions of law: (1) no matter how obvious the evidence of insobriety, the police could not arrest for the motor vehicle violation until the engine had been started, and (2) any proceedings that followed such an illegal arrest, including the gathering of statements from witnesses, would be tainted by the illegality of the arrest and would preclude prosecution for drunken driving.
Some unfairness to the defendant will ensue if the reader does not keep in mind that the following chronology of events is *470 based upon the hypothetical posture of the case that we previously noted. Just as in a motion for summary judgment by a defendant, we must here consider the facts in a light most favorable to the State.
Assuming the facts most favorable to the State, at about 9:45 p.m. on October 7, 1983, two police officers saw an inebriated patron stagger out of Bondy’s Tavern in Cresskill, toward a car that was illegally parked on the sidewalk in front of the tavern. One officer approached the car. As the man who was then seated in the car started to put the keys in the ignition, the officer reached in through an open window and took the keys out of the driver’s hands. The officer placed the driver under arrest, and told him that he would have to submit to the breathalyzer test required under N.J.S.A. 39:4-50.4a.
Approximately ten minutes after the arrest, the officer learned that a fifteen-year-old youth had seen the suspect operating the car before the suspect entered the tavern. The young man went to the police headquarters with his father, and at about 10:45 p.m. the youth gave a statement to the police. As a result of the information contained in that statement and both officers’ observations, the arresting officer made out two summonses, charging the defendant with operating a motor vehicle while under the influence in violation of N.J.S.A. 39:4-50(a) and with failure to submit to a breathalyzer test as required by N.J.S.A. 39:4-50.4a.
At the municipal court trial, the young man took the stand first. His in-court statement was somewhat more detailed than his original statement. He said that he had first seen the defendant at about 7:30 p.m. when he was in the vicinity of Bondy’s Tavern. He said that he was standing between Bondy’s and Jolly Nick’s, another local establishment. From there, he saw the defendant attempt to pull his car into the driveway by Bondy’s, miss the driveway, go up on the curb, and scrape his license plate on the curb. When asked if he observed anything else unusual about the operation of the car at that *471 time, the **370 youth said “only except when he pulled out * * * he pulled off the license plate half way and it was hanging on by one screw.”
The young man testified that he next saw defendant in front of Jolly Nick’s at about 9:30 p.m. He testified that from a vantage point in the park across the street from Jolly Nick’s, he saw defendant pull up on the sidewalk in front of the tavern. FN1
FN1. There is some concern over whether the youth’s testimony was consistent with his statement that had been furnished to the police in the course of discovery. The parties elicited that at some point the defendant had asked the witness for directions to the George Washington Bridge, and various inconsistencies between his statement and his testimony were pointed out. The witness’ statement was admitted into evidence subject to redaction.
The State next called the arresting officer. He testified that he had five years experience on the force, and special training in the recognition of intoxication. At that point the defense objected to further questioning on the subject of intoxication and addressed the court with respect to a stipulation that it had made with the municipal prosecutor. Defense counsel indicated to the court that for purposes of the hearing, the defendant would contest only the issue of operation. He would waive any defense to all other elements necessary to the State’s case. The court inquired:
Now are we stipulating that, assuming the legal arguments are not successful, after the arrest that all elements relevant to driving under the influence and refusal of the breath test will not have to be proved, will be stipulated to? Is that what we’re doing?
Counsel agreed that except for the issue of operation in the presence of the police officer, all issues were waived, and that on the arrest question his only argument went to presence. FN2
FN2. Under N.J.S.A. 39:5-25 a police officer may make an arrest for a motor vehicle violation pursuant to any act that is committed in his presence.
Understandably concerned, the municipal judge suggested a recess so that the parties could make a very clear statement of the stipulation so that he would know exactly what was being stipulated. The prosecutor and defense attorney then agreed *472 on the language of a written stipulation, which was expressed to the court in the following terms:
[A]ll elements necessary to establish a prima facie case by the State are conceded and stipulated to by the defendant other than operation. The defendant will waive the necessity of the State proving other than operation to the extent that the State must prove items such as identity, condition and alcoholic influence.
In addition, the stipulation conceded the presence of probable cause to require that defendant take the breath test if he were found to be operating in the officer’s presence.
Counsel for the defendant made it clear to the court that he was basing his entire defense on that line of cases that deals with the movement and operation of motor vehicles in such circumstances, referring specifically to State v. Sweeney, 40 N.J. 359, 192 A.2d 573 (1963), and State v. Daly, 64 N.J. 122, 313 A.2d 194 (1973). In the event that he won on the unlawful arrest issue, counsel preserved the right to request the court to dismiss the entire case.
Still concerned, the municipal court said:
The point that I want to clarify on the record-that assuming, depending upon my decision and depending upon your decision this appeal is necessary, that this matter will not then come back to the Court concerning whether or not there was influence-alcoholic influence under this-
COUNSEL: It will not.
THE COURT: Okay. That’s clear. Thank you very much.
With that stipulation of facts, the trial court then focused entirely on the aspects of the defendant’s conduct that dealt with his attempt to operate the car. As the police officer described it, he saw the defendant approach his car, get into the car, seat himself behind the wheel, take out his keys, and start to put the keys in the ignition. As noted, at that point the officer **371 reached in the car window and took the keys out of defendant’s hand. The engine was off. It had not been started. The vehicle was still parked on the sidewalk in front of Jolly Nick’s. The officer was quite direct in stating that he had no knowledge of any operation of the car by the defendant prior to the time that he made the arrest. He did not learn about the young witness until after the arrest and thus had no independent basis for determining that the defendant had operated *473 the vehicle at any time prior to the moment when he started to turn the key in the ignition.
So the question comes down to this: is an attempt by a drunk person to place the keys in the ignition and start the car, operation within the meaning of N.J.S.A. 39:4-50.4a sufficient to warrant the operator’s submission to a breathalyzer test. The municipal court did not decide the question directly. It defined the issue as one of probable cause, asking whether the arresting officer had reasonable grounds to believe the defendant had violated the statute. The court held that the car parked on the sidewalk and observed by the officer raised the inference of defendant’s prior operation of the vehicle while intoxicated and established probable cause. Further, the court noted that the circumstances observed by the officer showed that defendant intended to resume operation while intoxicated, compelling the officer to seize defendant’s keys in the interest of public safety. The municipal court convicted the defendant of both counts in accordance with the stipulation.
On the appeal de novo, the Law Division affirmed the municipal court. It read N.J.S.A. 39:4-50 to require “that at least the motor * * * be running, so that the car can be put into gear and moved.” It therefore concluded that the defendant did not operate the vehicle in the presence of the officer within the meaning of N.J.S.A. 39:4-50. Instead, the Law Division relied on the officer’s duty to protect the public safety as the grounds for the arrest.
The Appellate Division, however, disagreed that defendant’s arrest was valid and it reversed the defendant’s conviction for refusing to submit to a breathalyzer test. 202 N.J.Super. 398, 409, 495 A.2d 166 (1985). The court held that because the defendant did not operate the vehicle in the presence of the officer, the officer lacked the requisite knowledge to make a legal arrest of the defendant at the time the arrest was made. In the court’s view, in the absence of a valid arrest, the officer lacked the statutory basis to request that defendant submit to testing. *474 Nonetheless, it upheld the conviction for drunk driving under N.J.S.A. 39:4-50 on the theory that an invalid arrest is neither a bar to subsequent prosecution nor a defense to a valid conviction where due process requirements were satisfied. The court concluded here that defendant was fairly apprised of the charges against him and that the trial was conducted in accordance with required constitutional safeguards. 202 N.J.Super. at 404-406, 495 A.2d 166.
We granted the petitions for certification of both the State and the defendant. 103 N.J. 498, 511 A.2d 670 (1986).
On appeal to this court the defendant reiterates his argument that at the time of the original arrest at 10:00 p.m. the officer did not have probable cause to believe that defendant had been operating a motor vehicle while under the influence of intoxicating liquor in the officer’s presence. As noted, the officer did not know of defendant’s prior operation of the vehicle at 7:30 or 9:30 when he made the arrest at 10:00 p.m. Nor had the officer any basis to believe that the driver was drunk before he went into the tavern after he left the car on the sidewalk.
Under N.J.S.A. 39:4-50.2(a), every motorist using the public roads in the State is deemed to have given consent to undergo a chemical test to determine blood alcohol (breathalyzer test) “at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle [while under the influence of alcohol] in violation of [ N.J.S.A.] 39:4-50.”
**372 The penalty for refusing the test under N.J.S.A. 39:4-50.4a, for a first-time offender is a six-month revocation of driving privileges, a minimum fine of $250, and a minimum of twelve hours in an Intoxicated Driver Resource Center pursuant to N.J.S.A. 39:4-50(a)(1).
In 1981 as part of a comprehensive revision of the drunk driving laws, the penalty statute providing for administrative *475 handling of refusal cases was repealed. N.J.S.A. 39:4-50.4 repealed by L. 1981, c. 512 § 3. Jurisdiction over these cases was transferred from the Office of Administrative Law and the Division of Motor Vehicles to the municipal courts. N.J.S.A. 39:4-50.4a. The penalty statute, N.J.S.A. 39:4-50.4a, now requires that:
The municipal court shall determine by a preponderance of the evidence whether
(1) the arresting officer had probable cause to believe[,]
(a) that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State[,]
(b) while under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marihuana,
(2) whether the person was placed under arrest, and
(3) whether he refused to submit to the test upon request of the officer[.] * * *
[I]f these elements of the violation are not established, no conviction shall issue. [Numeration added]
By virtue of the stipulation, findings on all issues “other than operation” were waived. Obviously, defendant was at least in “actual physical control” of the vehicle, as the words appear in the penalty section, but we agree that his liability should be premised on the question whether he was operating the vehicle. (We note, however, that the Motor Vehicle and Traffic Law defines “operator” as “a person who is in actual physical control of a vehicle or street car.” N.J.S.A. 39:1-1.)
In addition, we shall agree for purposes of this appeal that the officer’s authority to arrest may be analyzed in the context of N.J.S.A. 39:5-25, which authorizes any police officer to arrest, without a warrant, any person violating in his presence any provision of chapters 3 and 4 of the Motor Vehicle and Traffic Laws. FN3 However, we further note that under N.J.S.A. *476 39:3-29, subject to the requirements of Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), police may stop vehicles to require the production of driving credentials. See State v. Astalos, 160 N.J.Super. 407, 390 A.2d 144 (Law Div.1978) (police officers entitled to stop speeding vehicle without warrant under either N.J.S.A. 39:3-29 or N.J.S.A. 39:5-25, the express statutory authority to apprehend Motor Vehicle Code transgressors); see also, State in the Interest of J.B., Jr., 131 N.J.Super. 6, 328 A.2d 46 (Cty.Ct.1974) (further authority for warrantless arrest in motor vehicle context found in Rule 3:4-1, made applicable to motor vehicle offenses by Rule 7:3-1, which establishes procedures to be followed in making a warrantless arrest).
FN3. The Law Division observed that under N.J.S.A. 26:2B-16, pursuant to his duty to protect the public safety, an officer may apprehend any person who is intoxicated in a public place and who the officer has reason to believe is incapacitated and may request that person to submit to “any reasonable test, including * * * tests of his * * * breath.” N.J.S.A. 26:2B-16. However, we note that apprehension under this statute, found in a chapter entitled “Rehabilitation of Alcoholics,” is not considered arrest.
Operation in the officer’s presence has never meant that the officer must see a vehicle in motion. The word “presence” in the statute “sums up the requirement that the officer know of the event by the use of his senses.” State v. Dickens, 130 N.J.Super. 73, 76, 325 A.2d 353 (App.Div.1974) (citation omitted) (officer may arrest intoxicated motorist at rest in a vehicle by the highway when evidence demonstrates that his operation got the vehicle there). Resolution of the question of operation requires a review of the series of decisions that counsel for the defendant presented to the municipal court. For background we refer to the thorough analysis of those cases made in State v. Stiene, 203 N.J.Super. 275, 496 A.2d 738 (App.Div.1985).
**373 In that case, the court was presented with the aftermath of a young man’s attempt to sell an old car. As the court stated the facts, when a prospective purchaser took the car out for a test drive, it ran out of gas close to defendant’s home. Defendant was intoxicated at the time but he nonetheless attempted to move the car by having his mother push the car back to the house with her car.
Due to the old car’s peculiarities, without the key the shift lever could be put between park and reverse, and when placed *477 between these positions the car could be rolled. When defendant’s mother attempted to push the car, however, her vehicle sustained damage due to the inability of the defendant’s car to move since the gearshift lever had snapped back to park. A police officer coming upon the accident scene concluded that the defendant was behind the wheel and had attempted to control the car’s motion.
The sole legal issue in the case was whether defendant’s activities constituted operation of the vehicle in violation of N.J.S.A. 39:4-50(a). The court wrote:
There are but few New Jersey cases that have considered the issue of “operation.” See State v. Daly, 64 N.J. 122 [313 A.2d 194] (1973); State v. Sweeney, 40 N.J. 359 [192 A.2d 573] (1963); State v. Jeannette, 172 N.J.Super. 587 [412 A.2d 1339] (Law Div.1980); State v. Prociuk, 145 N.J.Super. 570 [368 A.2d 436] (Cty.Ct.1976). State v. Sweeney established the principle that when one in a public place “turns on the ignition, starts and maintains the motor in operation and remains in the driver’s seat behind the steering wheel, with the intent to move the vehicle,” he “operates” the motor vehicle within the meaning of N.J.S.A. 39:4-50. Although the “intent” test was criticized in the dissenting opinion of Justice Francis in Sweeney and in the concurring opinion of Justice Clifford (with whom Justice Pashman joined), in State v. Daly, “intent” is the principal consideration to determine operation. In fact, in State v. Daly, where the driver sat behind the wheel with the engine running for a considerable length of time, using the engine only to power the heater in the car but with no intent to move the vehicle, the court found no violation of the statute. * * * * State v. Jeannette involved the “operation” of a motorcycle by the defendant’s coasting a short distance on the vehicle in neutral, without activating the motor. Defendant’s girlfriend had taken the key from him so that he could not operate the vehicle in his intoxicated condition. The court nevertheless determined that the public was to be protected from the moving vehicle irrespective of whether it was powered by its engine or by gravity. This case is cited to us for the proposition that the vehicle must move in order that defendant be found guilty of violating the statute. We do not so read Jeannette.
Following Sweeney and Daly we determined that we must focus upon defendant’s intent. In Daly, if defendant had been found in the stationary vehicle with the intent to move it, there is no doubt from our reading of the opinion that a conviction would have been warranted. Therefore, the motion of the vehicle is not a limiting factor. We also agree with the decision in Jeannette that the engaging of the engine in a moving vehicle is not required for a conviction.
Synthesizing these cases, it appears that when 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 theattempt is unsuccessful) and there is the possibility of motion, he violates the statute. The Legislature through this statute and others has demonstrated its antipathy to the operation of motor vehicles by those under the influence of alcohol, drugs or other intoxicants. Only chance * * * prevented this automobile from being placed in motion by a person with a blood alcohol reading well in excess of that necessary to declare him unfit to operate the vehicle. Here we have not only an intent to operate but a concerted attempt to move the vehicle. There is really little **374 difference between the defendant here and the defendant in Sweeney. * * * We, therefore, find defendant’s actions constituted operation within the meaning of the statute. [203 N.J.Super. at 278-279, 496 A.2d 738 (emphasis added) (footnote omitted).]
*478 There is really very little difference between the defendant here and the defendant in Stiene. Only the chance occurrence of the police officer upon the scene prevented this vehicle from being placed in motion by a person with a blood alcohol reading well in excess of that necessary to declare him unfit to operate the vehicle. This much is admitted by defendant.
The contrary argument overlooks the well-recognized distinction between the concept of “operating” a motor vehicle for the purposes of defining a moving violation and “operating” for purposes of defining the essence of the under-the-influence offense. “The essence of the [latter] offense is the impaired condition of defendant’s physical coordination or mental faculties rather than the manner in which he is driving.” State v. Roenicke, 174 N.J.Super. 513, 517, 417 A.2d 54 (Law Div.1980).
This analysis is consistent with precedent elsewhere. It is clearly established that the term “operating,” as used in statutes prohibiting the operation of a motor vehicle while intoxicated generally has been construed as broader than the term “driving.”
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 purpose of putting the car in motion, and that “operates” refers to the actual physical handling of the controls of a vehicle.
[Annotation, “What Constitutes Driving, Operating, 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) (footnotes omitted).] FN4