New Jersey Upholds DUI for a Man in Parked Vehicle

The Newspaper.com ^ | 8/28/2007 | staff reporter

[Daffynition]

New Jersey appellate court decision upholds a DUI for a man sleeping in a parked truck under the influence.

New Jersey Superior Court logoA New Jersey appellate court yesterday upheld the principle that convictions for driving under the influence of alcohol (DUI) can be imposed on individuals who were not driving. David Montalvo, 36, found this out as he responsibly tried to sleep off his intoxication in his GMC pickup truck while safely stopped in the parking lot of the Market Place Deli on a cold February morning last year. At around 5am he awoke to see a Hamburg Police Department patrolman standing over him. The officer had opened the door of Montalvo's truck to rouse the man and insist that he take a breathalyzer test. Montalvo refused.

He was arrested and forced to make a conditional guilty plea to the charge of DUI, intending to challenge the police officer's actions as a violation of the Fourth Amendment. Montalvo's attorney argued that the patrolman could have no reasonable grounds to suspect that a sleeping man was involved in criminal activity. Montalvo's truck was running, in park, because according to weather records it was about 25 degrees Fahrenheit that Saturday morning.

"From the perspective of the officer on the scene, I don't find at all that what he was doing was unreasonable," Superior Court Judge Thomas Critchley Jr. said in his rejection of Montalvo's argument. "In fact, I find it would have been unreasonable to have stopped his inquiries at any point short of what he did."

The appellate court agreed that the officer was acting reasonably to render assistance to someone who may have been in distress.

"The officer wanted to make sure the driver was 'okay,' nothing was wrong with the businesses and that the truck was operating properly," the appellate decision concluded. "We are convinced that under the facts as observed by Officer Aaronson defendant was lawfully subject to limited inquiry based upon an objectively reasonable exercise of the officer's community caretaking function."

The appellate division affirmed Montalvo's DUI conviction, meaning the sleeping motorist faces a civil remedial fee or "driver responsibility" tax of $3000 in addition to various other fines and fees of at least $1000, plus his legal bills.

[The full text of the unpublished court ruling is available in a 49k PDF file at the source link.]

[AmericaUnited]

I’m against drunk driving but along with asset forfeiture and child support, good intentions have turn the law into revenue enhancement to enrich the government and the price also includes losing our personal freedoms under the law.

Ding, ding, ding! We have a winner!

And of course the nanny stater's will be their biggest cheerleaders.

[ZGuy]

It is this kind of situation that makes me want to hear a candidate for governor or president say he will make it a point to regularly and publicly grant pardons to people who everybody knows got screwed by judges following “the letter of the law”, etc.

[Ladysmith]

Prove that he did. If there’s no witness, there’s no proof.

A lunatic walked around a restaurant counter to attack me. The cop working as a janitor saw only that. He could not do a thing to the guy until the nutcase had his hands on my throat. Only then could he do something about it.

[Bob]

In California having your keys in the ignition, with the engine off is enough to convict you of DUI in this scenario.

If I'm not mistaken, just having the keys in your possession or having access to them is sufficient here in California.

When I needed to 'sleep it off' on a few occasions in Felton, I'd park in the bowling alley lot and flip my ignition key through the slot between the bowling alley's front doors. Since I had no access to the keys until the restaurant opened the next morning, I knew that I couldn't be charged with DUI. (Of course, if the sheriff on duty was in a pi$$y mood, he could always write me up on a drunk in public charge.)

[AmericaUnited]

Because I am not a POS and I don’t drive drunk.

Have you EVER driven after consuming ANY alcoholic beverage?

[bonehead4freedom]

Don’t smoke without getting your clean air permit and using it only in an a designated approved smoking ghetto after all it’s for the children!

[DelphiUser]

I have a friend who was in a Bar until closing time, called a my BIL for a ride (My BIL, at that time lived in my basement, I know, not a good sign...) and sat in his truck waiting for him to arrive (it was cold, and the drive from my house is 45 min), when BIL got there He had been arrested for DUI. The truck was not running, the keys were in his pocket and he was sitting in the passenger side of the truck. The logic was he had the keys and could drive at any time. I am all for keeping the roads safe, but I have lost much respect for police because of their actions. Many police officers act like unofficial tax collectors, who's only job is to ticket and fine so they can get money to support their department The police who act this way are often not looking for violations, as much as who will actually pay the ticket. In Utah, I have purchased three new cars, each time within a week, I was picked out of a group of people going a little over the speed limit (Everyone drive 70-75 in a 65 zone here, if you don't people get mad) and ticketed, the logic (when I asked on officer) "If you can afford a new car you'll pay the fine." Remove that incentive, and they might become nice people again.

An example of this logic From a Fishing Jokes page

A couple goes on vacation to a fishing resort in northern Minnesota. The husband likes to fish at the crack of dawn. The wife likes to read. One morning the husband returns after several hours of fishing and decides to take a short nap. Although she isn't familiar with the lake, the wife decides to take the boat. She motors out a short distance, anchors, and continues to read her book. Along comes the game warden in his boat. He pulls up alongside her and says,"Good morning, Ma'am, what are you doing?" "Reading my book," she replies, thinking isn't that obvious? "You're in a restricted fishing area," he informs her. "But officer, I'm not fishing. Can't you see that?" "Yes, but you have all the equipment. I'll have to take you in and write you up." "If you do that, I'll have to charge you with rape," says the woman. "But I haven't even touched you," says the game warden. "That's true, but you do have all the equipment." MORAL: Never argue with a woman who reads. (Contributed by Scott Jamison, Orem,Utah)

[badgerlandjim]

What part of the story that said the guy was asleep, NOT DRIVING, didn’t you understand? Also, now that .08 BAC is the standard in most states, how is a person supposed to catch a ride home after drinking a couple of beers if he can’t GET INTO A CAR DRUNK! Use some common sense, cubs.

[Manic_Episode]

"By that rationale, I am in control of my vehicle if it is parked in my garage and I have the keys in a desk drawer. Doesn’t hold water. One can’t be guilty of drunk driving when not driving. IMO."

=============================

It seems to me I have heard of something along these lines (but not quite so blatant) actually taking place but I can't recall the details. It may have been something on FR a few years ago. Perhaps it will come back to me later or someone else may remember the story.

[Squantos]

Lactose intolerant idgits should eat their cereal with a fork........dramatics and fake rants from disruptor noob’s are always a hoot !

Sitting in a car , parked, drunk, asleep or not isn’t (or wasn’t) illegal as you well know. At least it wasn’t when I was a deputy sheriff in NM. Operating a vehicle under the influence is. Operating a vehicle doesn’t mean sitting in it. Do we arrest 13 year old kids waiting for their parents in a car ? No ! Do we arrest elderly or handicapped sitting in a vehicle when they don’t have a license yet the keys are in the ignition ? No.

Operating a vehicle is the key in most sane decisions. Capable of operating is what we see here. If that’s the case why wait till they get too the car ? Stuff and cuff em on the steps of the drinking establishment ! Hell get em on the bar stool ! Your over .08 and you have car keys in your pocket sir.....yer under arrest !!

Just more BS from loose cannon LEO’s , DA’s ,rogue judges and folks who call themselves conservatives who want such stasi like nanny laws.

The RINOS & RAT Socialists who drive such incrementalism will start to snivel & whine when the precedent their BS sets for others gets to their pet issue......

Doom on em ........

[AmericaUnited]

Capable of operating is what we see here. If that’s the case why wait till they get too the car ?

Shades of the 'Minority Report'. The State will just "know" who will commit an offense in the future and just arrest them ahead of time.

[ReformedBeckite]

Dont forget lawn mowers and horses.

I've heard of a few drunk Amish getting DUI tickets for there horses and buggies. If I remember right there was a case where one Amish passed out and the horse stoped right in the middle of an insection.

[Squantos]

Yep........one of them thought police thangs . I despise drivers who DUI. Alcohol or prescription or not drugs. Aressted and or scraped off the highway lots of em and their victims. Not fun but even as a former deputy I know one has to break the law to be in violation of.

Stay Safe !!

[DCPatriot]

A lunatic walked around a restaurant counter to attack me. The cop working as a janitor saw only that. He could not do a thing to the guy until the nutcase had his hands on my throat. Only then could he do something about it.

I hope you learned your lesson that you can only talk about illegal immigration on the internet. ;^)

[BuffaloJack]

Law West of the Pecos.
Judge Roy Bean would be proud.

[calex59]

Yes who cares if the guy was a drunk who went out for the purpose of killing people as everyone who drives drunk does and pulled over and fell asleep. If he wasn’t a total POS he wouldn’t have been in the car atall.

You know, most of the people on this post are not defending drunk drivers, they are defending the rule of law, where you actually have to be driving drunk to be cited for it. You are a nut case who is overcome with drunk driver derangement. I see no one on this thread saying it is ok to drive drunk. The person arrested and charged wasn't driving drunk, he was sleeping drunk. If you can't see the difference I would suggest you go get professional help because all of the 10 or so comments you have made get progressively more strident and stupid. Have a nice day.

[JSDude1]

The most corrupt state in the nation; what do you expect?

[Larry Lucido]

LOL!!!! I’m stealing that one!!

[napscoordinator]

Montalvo’s truck was running, in park, because according to weather records it was about 25 degrees Fahrenheit that Saturday morning.

Dumb guy. I don’t care how cold it is. If you are drunk, you don’t keep your car running. The guy needs to be in jail for stupidity if nothing else.

[sheana]

He then should have asked for a jury trial. Don’t take the chance of one idiot judge deciding your fate.

Exactly! I was on a trial something like this. A guy and his gal driving home from a pizza joint drunk. She started beating up on him while he was driving and he swerved and hit a tree in someone’s yard. By the time the trial (and our laughter) was over we let him go.
We decided that since she and he had gone back together he was getting his just punishment.