Courts around the country have ruled that convictions for driving under the influence of alcohol (DUI) do not have to involve driving, automobiles or even any alcohol consumption at all. The New Jersey Superior Court Appellate Division cited this evidence last month in finding John Thompson guilty of driving while intoxicated -- even though he was sound asleep in the parking lot of a 7-Eleven in Wanaque when police found him on the night of September 7, 2017.

The officers woke Thompson, smelling the strong odor of alcohol on him. Thompson told them he had been asleep about 40 minutes. He had legally prescribed medications Cymbalta, hydrocodone, methadone and Xanax with him at the time. Thompson failed all the field sobriety tests and was arrested and convicted of DUI. The only question before the court was whether it is appropriate to charge someone asleep behind the wheel of a parked car with DUI.

"Although a violation of New Jersey Statutes Annotated 39:4-50 is commonly referred to as a DWI violation ('driving while intoxicated'), the statute actually makes no mention of 'driving' as a fact that must be proven in order to convict an individual of this offense," Clarkson S. Fisher Jr wrote for the three-judge panel. "The statute instead prohibits 'operat[ion]' of a vehicle while under the influence.... Operation, for example, includes sitting or sleeping in a vehicle, with the engine running, even when the vehicle isn't in motion."

The state Supreme Court has already ruled that proving someone had "intent" to operate is sufficient for a DUI conviction. This includes a drunk stumbling out of a bar who walks toward his car, but is intercepted before he can get in and drive away.

"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," Judge Fisher noted.

The court explained that it published this opinion not because it was establishing a new precedent, but because it has ruled seven times in the last year on the exact same issue in unpublished decisions.

"We have been driven to publish because of the extraordinary number of times the court has recently faced this precise issue," Judge Fisher concluded.

A copy of the unpublished ruling is available in a 100k PDF file at the source link below.