Posted on 09/02/2007 3:22:06 AM PDT by 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[The full text of the unpublished court ruling is available in a 49k PDF file at the source link.]
And I pray the same thing for you, except that I would add plans and capability.
Either tone down the rhetoric or get banned on the spot.
Your choice..
There was a guy in Minnesota about 12 years ago who got a DWI for getting something out of the glove box. He and his wife were at a party at some park where open beverages were allowed. She was a designated driver and hadn’t had any alcohol. He had a set of keys in his pocket and went to the car to get his wife some insect repellent (if I remember correctly) and when he was sitting on the passenger side a cop confronted him and ended up charging him with DWI. He was later convicted simply because he had a set of keys in his pocket and was the only person in the parked car.
Pfft... prove it. The vehicle WAS NOT MOVING, why is that hard to understand?
I'm sitting in front of my computer while it is running, and...I'm drinking, does that make it an S.U.I., Surfing Under the Influence?
So...what is the excuse for almost all of our politicians? Senility?
cubswinby100 since 2007-07-01
Another defender of the police state at all costs joins FreeRepublic.
I sometimes wish they wouldn't let teenagers post here though.
LOL. Great post!
Thoughtful post.
I think you'll find that if you look at things from a historical standpoint, things really started to get bad as it regards officer/citizen relations with the introduction of S.W.A.T squads. The paramilitarization of police reinforces the whole "us vs. them" mindset that is fairly strong in any case. Another factor is the ever-more draconian nature of various laws, especially those concerning the drug war. Factor in the massive expansion of asset forfeiture, that has made it quite lucrative for both police departments and local jurisdictions to confiscate property at the slightest provocation. This also tends to set government forces against those they are supposedly charged with protecting.
All in all, things don't really look good for us lowly citizens in the future unless we can figure out a way to fix this.
You see , you have to understand NJ. Local districts in NJ are all about MAKING MONEY. These half assed towns here in NJ will ticket you for breathing. These towns live off of bullsh*t like this. SOme of these small town cops make UNREAL $$$$. My local little corrupt town here has about 100 full time cops ( the place is like 2 square miles ..NOTHING happens here ) There are a ton of cops here in this town that make $100,000 and above to do nothing. In order to PAY for all that fat they give out tickets and arrest anyone they can. That’s all this is about.
It’s about the $$$$$$ you don’t get it . The cops in NJ personally could care less what you do . They want their $$$$ from you .
I had previously said very clearly that it depends on the laws in each state and how the law on the books defines the words, but you chose to ignore that, and leave that out of your quote of me.
“Operate” may be a much broader word than “drive” and therefore may have broader implications under law in some states. This was explained to us in high school driver’s education by a California Highway Patrolman under the discussion of “reciprocal” nature of state licensure. The question was “Why do the states honor the licenses of all the other states?” One point the Patrolman brought up was that some states’ licenses say, “OPERATOR LICENSE,” while others say, “DRIVER LICENSE.” There is a difference.
My wife just pulled out her Indiana license and it uses BOTH words: “INIDIANA OPERATOR DRIVER LICENSE.” If the two two words were synonymous, there would be no need to use both. Indiana evidently decided to cover all the implications. Her previous license said, “INDIANA DRIVERS LICENSE” and then the word “OPERATOR” was typed in, in another section, upon issue.
And we know it was was legitimately issued by a highly intelligent bureaucrat by the spelling...
Reading the posts on the thread, one can conclude that most rail against those who want to control you and those who don’t want to be controlled. It’s a difficult notion ... but expatriating may be the only solution in the near future.
...the patrolman could have no reasonable grounds to suspect that a sleeping man was involved in criminal activity.
Not of criminal activity, but the officer would have reasonable cause to check the man's physical wellbeing. It may have been a heart attack, diabetic comma, seizure, loss of blood ...
Walking up to the truck's window and getting no response the officer was duty bound to check it out. While the driver was obviously not "driving", as in moving down the road, the engine was running. He was "operating" the vehicle.
“Don’t think. Don’t make judgment. Follow rules. If there is no rule, stop all activity until rules are, or are not issued. Wait for retirement, pension and then death.”
This kind of thinking is infecting our military big time too.
In this particular case, there was no dispute as to the fact that she never actually touched or turned on any of the car's controls. The Supreme Court distinguished this case from another whereby a man was charged with DUI after he was found sleeping behind the wheel of his pickup truck on a highway emergency ramp. The man admitted driving the truck to the spot where officers found him. The court noted, "In contrast, the evidence here is undeniable that she did not drive the car to the place where the officer found her behind the wheel”.
Different circumstances, possibly different State.
Yes, I realize that. Thank you. This guy was fubarred, no matter what he did, unless it was to call a cab. I’m naive to think that if it were me in that situation, the local constable would use common sense and get me home with out a lot of fuss. But we don’t live in a world of common sense and police, even the small town LEOs, now overstep their bounds, for whatever reason. I still prefer small town Mayberry and long for the time when we cared for our neighbors, family and apple pie above all. Jes sayin’. ;-)
I still prefer small town Mayberry and long for the time when we cared for our neighbors, family and apple pie above all. Jes sayin’. ;-)
Yep - way back when. Today DUI is right up there with Murder, Rape and Mayhem.
30 years ago my father in law was a heavy drinker. Local police would drive him home and help him into his house. Today Denbigh is no longer a small town in the countryside. It's innercity Newport News. I doubt many small towns could be found where police are willing to help a person home from a bar - except on New Year‘s eve. The number of tickets issued and convictions are more important.
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