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[The full text of the unpublished court ruling is available in a 49k PDF file at the source link.]
We are well, in-laws are well, life is better than I deserve.
Hope the same is true for you.
And I understand the man is guilty under the letter of the law.
That doesn’t make prosecuting/fining/jailing him, in this case, the right thing to do.
Next day we find out that he had been ticketed for leaving the scene of an accident and drunk driving.
He had gone home, gone into his house, forgotten something in his car (parked in a public lot), and found the police at his car, who were there based on the fact that someone had written down his license plate.
So they arrested him for drunk driving without ever actually seeing him behind the wheel. So we concocted a scheme. He contacted the driver of the car he hit (a good old boy probably drunk himself) and made it right with him so he wouldn't testify/or press charges. I offered to say that I was actually driving and had dropped him and his car off and walked home.
We got a lawyer, stuck to our story and the charges were dropped before our hearing.
I'm not proud of it, but there's a LOT of leeway when it comes to getting arrested for DUI.
(a) Except as provided in subsection (g) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood .... blah, blah, blah...
I'm guessing that by "operates" they mean, the motor running. If, as others had suggested, he were just asleep in the vehicle perhaps it would be a drunk in public charge ?
Except here is a fellow who realized he shouldn’t drive, pulled over and now is punished for the right decision.
A couple of points I was only lightly getting to. What kind of person is attracted to, as they say, enforcing reams of minutia? Most cop work is boring. Who likes this? What kind of person keeps at it? In order for a normal person to stay with such a dis-system, they are required to shut down their active thinking. So, by and large you end up with a labor force of nitwit automaton, whom thinking is actually detrimental to ones employment, and in fact independent judgment forbidden. This of course requires ever more detailed rules. The system becomes a captive of itself. My cousins husband is a electrical engineer. He put in some low voltage lighting around his pool. The electrical code enforcer wanted him to drag 110 power to with in 7 feet of the pool. He had put the transformer at the house and run 12 volt out. It was crazy. The husband new the theory and practice and it made even common sense, but the code officer said the code is the code. He said otherwise some one would run extension cords, which could still be done. But this is how the clerks protect themselves. 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.
What irks me is that even in his impaired state, this guy probably thought he was doing the right thing. And as always... the cop knows better than we do, in all matters. Discretion be damned.
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.
Its just that the court was puzzled that the only thing that they could do to him was take away a DL that he had already lost for life. :)
Before anyone starts with the “why can’t they fine or imprison him??” stop. - They tried but but lack the legal basis to do so.
Thanks for your research. I know cops who would make sure you got home safely because they would apply common sense to a situation .... and others who have a hard on for throwing around their weight. In a situation like this, it may be the luck of the draw.
What if you are parked in your driveway? Same thing, yes?
Hey, why not in your bed? You drove the car home drunk didn’t you? So you presumptively had to be in control of your vehicle to get there, yes? - provided that you did drive of course.
Hey, why not if you rode your bicycle inside?
Its the classic slippery slope.
I think that's now fairly standard in the law.
You don’t need keys to start or operate a vehicle. Thousands of cars are stolen each year and driven off without the aid of having the key.
Coming soon, DUI conviction due to being NEAR a motor vehicle after having a drink.
Alcohol is a mind altering drug.
The gist of laws like this is that people will risk driving drunk rather than sleeping it off in parking lots or on the side of the road. What is funny is that they tell you to take a cab, but if push came to shove they could get you for "drunk in or about" a vehicle for riding home in the cab! CA is loaded with great laws./SAR
But to everyone here who defends drunk drivers your brother is evil and the drunk driver is a hero.
Anyone who would defend a drunk driver thinks crime is ok and would defend a child rapist.
This crap happened in Illinois too. I don’t get it. Don’t we WANT drunks to “sleep it off” before the drive? This guy was doing the responsible thing under the circumstances. Things are getting nuttier every day.
Another fan of drunk drivers. Thinks murder is okay and yes if you think drunk driving is okay since they often murder people you are fine with murder.
I pray you have no children.
**sigh**
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