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New Jersey Upholds DUI for a Man in Parked Vehicle
The Newspaper.com ^ | 8/28/2007 | staff reporter

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.]


TOPICS: Crime/Corruption; Government; US: New Jersey
KEYWORDS: donutwatch; dui; neoprohibition; publicintoxication; revenuetickets
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Mistake #2.


1 posted on 09/02/2007 3:22:07 AM PDT by Daffynition
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To: Daffynition

I feel so much safer.


2 posted on 09/02/2007 3:23:41 AM PDT by FreedomPoster (Guns themselves are fairly robust; their chief enemies are rust and politicians) (NRA)
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To: Daffynition

The state has made its position clear: Drive home drunk, or risk getting busted for DUI in a non-moving car.


3 posted on 09/02/2007 3:27:58 AM PDT by Arthur McGowan
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To: Arthur McGowan

He had to have driven the car to that location, uh....DRUNK.


4 posted on 09/02/2007 3:29:55 AM PDT by DCPatriot ("It aint what you don't know that kills you. It's what you know that aint so" Theodore Sturgeon))
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To: Daffynition
I'm no defender of DUIs, but this is government-oppressive bulls***. How can you be driving under the influence when you're not driving? When you're sleeping, in fact?

Our judicial system is slowly morphing into a system of lawless oppression. By lawless, I mean that the laws don't mean what they mean, they mean what some judge says they mean which is entirely different from what they actually do mean. And all of it is designed to give greater power to the government to throw your *** in jail or seize your property if you don't do exactly as they say.

5 posted on 09/02/2007 3:33:26 AM PDT by Luke Skyfreeper
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To: DCPatriot
He had to have driven the car to that location, uh....DRUNK.

And where's your proof of that?

He could have easily walked there. He could have sat in the vehicle and consumed alcohol (different offense no doubt, but not DUI). He could have gone to a party and a friend dropped him at his vehicle.

If it can be proven that he drove there drunk, then I change my stance. But I see no proof.

6 posted on 09/02/2007 3:36:45 AM PDT by Luke Skyfreeper
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To: DCPatriot

But nobody saw him do it.


7 posted on 09/02/2007 3:40:22 AM PDT by Arthur McGowan
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To: Luke Skyfreeper

I note that in this case the government has forcibly seized at least $4,000 from this man, not including his legal fees which will probably amount to at least another $1,000 or more. And for what? He might have been charged with public intoxication, but he certainly wasn’t “driving under the influence.”

Since when the hell does “driving” mean lying on a truck vehicle sleeping?


8 posted on 09/02/2007 3:41:59 AM PDT by Luke Skyfreeper
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To: Luke Skyfreeper
Sorry, truck seat.
9 posted on 09/02/2007 3:42:20 AM PDT by Luke Skyfreeper
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To: Luke Skyfreeper
You're correct. However, the engine was running...albeit for him to keep warm in 25 degree temperature

Plus, when interviewed, he obviously didn't opt for any of the possible explanations you cited.

He probably admitted driving there and realized he needed to sleep it off a bit.

10 posted on 09/02/2007 3:42:35 AM PDT by DCPatriot ("It aint what you don't know that kills you. It's what you know that aint so" Theodore Sturgeon))
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To: Arthur McGowan

See #10.


11 posted on 09/02/2007 3:43:51 AM PDT by DCPatriot ("It aint what you don't know that kills you. It's what you know that aint so" Theodore Sturgeon))
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To: Luke Skyfreeper
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

ALWAYS, ALWAYS, ALWAYS follow the money.

But... the guy made the big mistake of having the vehicle running.

12 posted on 09/02/2007 3:45:38 AM PDT by AmericaUnited
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To: Luke Skyfreeper
"How can you be driving under the influence when you're not driving?"

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

Because he is in control of the vehicle. Even if it wasn't running and he only had the keys in his pocket but is still in the vehicle he is in control of it, according to the law.

Been that way for decades around here anyways

I don't agree with it, I'm just saying how it is.

13 posted on 09/02/2007 3:49:18 AM PDT by Manic_Episode (Some mornings, it's just not worth chewing through the leather straps...)
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To: AmericaUnited
Okay, the other factor is apparently he was asleep with his foot on the accelerator, which does weaken my stance a bit. Still, the man was not driving the vehicle. How can you be "driving under the influence" when you're not driving? I suppose he could be held to be "operating" the vehicle, but it isn't the same thing as driving.

And I didn't see anything in the ruling to suggest he admitted driving there. On the contrary, he refused a breath test, so it doesn't look like he was in an "admitting" mood.

14 posted on 09/02/2007 3:51:03 AM PDT by Luke Skyfreeper
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To: DCPatriot

I’m no fan of drunks but it seems the cop could have just called the guy a cab. In the old days in small town, small government America that’s probably what would have happened.


15 posted on 09/02/2007 3:52:19 AM PDT by Will_Zurmacht
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To: Manic_Episode
I don't agree with it, I'm just saying how it is.

Then once again we're back to laws not meaning what they mean.

16 posted on 09/02/2007 3:53:14 AM PDT by Luke Skyfreeper
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To: Luke Skyfreeper
He could have easily walked there. He could have sat in the vehicle and consumed alcohol (different offense no doubt, but not DUI). He could have gone to a party and a friend dropped him at his vehicle.

You left out the possibility that aliens had abducted him, conducted medical experiments involving alcohol, then deposited him and his truck in the parking lot.

17 posted on 09/02/2007 3:53:16 AM PDT by Quiller (When you're fighting to survive, there is no "try" -- there is only do, or do not.)
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To: Daffynition

It was the cop who instigated this and made the DUI charge to begin with. That tells you how far they will go to get you a criminal record. He then should have asked for a jury trial. Don’t take the chance of one idiot judge deciding your fate.


18 posted on 09/02/2007 3:53:38 AM PDT by moonman
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To: Quiller

With as many aliens as we have in this country (and more flooding across the border) you’re probably right.


19 posted on 09/02/2007 3:54:18 AM PDT by Luke Skyfreeper
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To: Luke Skyfreeper

We’re just frogs in pot of water with the heat turned on low ... for now.


20 posted on 09/02/2007 3:55:03 AM PDT by Daffynition (The quieter you become, the more you are able to hear.)
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