Proof of Operation in New Jersey DWI Cases

Bergen County New Jersey DWI Defense Lawyers

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Arrested for DWI Bergen County NJ

The attorneys at The Tormey Law Firm, with offices in Hackensack, New Jersey have been representing clients charged with alcohol-related offenses across the state for years. With extensive experience combating charges such as third offense DWI, underage DWI, and refusal to submit to a breath test in courts such as Fort Lee, Mahwah, and Palisades Interstate Park, we have developed specifically-formulated defense strategies to address a host of driving under the influence offenses. For additional information about some of these strategies, view our DWI informational series on YouTube.

Travis J. Tormey, the firm’s founding partner, is one of a few New Jersey attorneys who is a certified Alcotest 7110 operator, the breath testing device used throughout the state to prosecute drunk driving cases. As such, Mr. Tormey understands the components of the machine, how it works, and can identify any issues with the functioning of the breath testing device. This knowledge and expertise can be used to attack the reliability of the breath test result in your case and may ultimately lead to the dismissal of your charges. To read just a few of our many DWI case wins, view our success stories page.

With offices conveniently located in Hackensack, in the heart of Bergen County, Mr. Tormey and his team of knowledgeable trial lawyers are available immediately to assist you at (201)-330-4979. The initial consultation is always provided free of charge.

Elements of a DWI Prosecution: Proof of Operation of the Motor Vehicle

There are several elements that the State must prove in order to sustain a driving while intoxicated (DWI) case in New Jersey including probable cause for the traffic stop, proof of intoxication, and proof of operation of the motor vehicle. In some cases, proof of operation is very clear as law enforcement pulls the vehicle over and the driver is behind the wheel. However, there are many cases where proof of operation is not so clear including the following:

  • Vehicle is in a parking lot not running but driver is behind the wheel
  • Vehicle is in a parking lot running and driver is behind the wheel but the car is in park
  • Vehicle is in the parking lot running but the driver is sleeping with the seat reclined
  • Vehicle is stopped on a highway with the car running/not running, person is not behind the wheel
  • Vehicle is in a driveway with the car running/not running, person is behind the wheel/not behind the wheel
  • Vehicle is at a rest area with the car running/not running, person is outside the vehicle
  • Several passengers in the vehicle, different versions of who was driving

In the landmark proof of operation case, State v. Daly (126 N.J. Super 313 (1973)), the Supreme held that the defendant, who was found in an intoxicated condition sitting in the driver’s seat of his car in a restaurant parking lot with the motor running one hour and 20 minutes after the closing time of the tavern, and who asserted that he had started the engine to get some heat in the car while he slept, was not shown to be ‘operating’ the car. His intent to operate the vehicle was clearly not present since he was sleeping and the car was only running to stay warm.

Proof of Operation of a Motor Vehicle: Fair Lawn DWI Charges Dismissed

Travis J. Tormey recently represented a client charged with driving while intoxicated (DWI) in Fair Lawn, New Jersey. Mr. Tormey was able to isolate an issue with the State’s proof of operation of the motor vehicle. The defendant and the passenger had switched seats at some point before the traffic stop and the arresting officer was not certain that the defendant was sitting in the driver’s seat after the initial traffic stop or that he had operated the motor vehicle at any point. As such, the State was unable to prove beyond a reasonable doubt that the defendant operated the motor vehicle which is one of the essential elements of a DWI case. Therefore, the DWI charges were dismissed against the defendant.

As you can see, an experienced DWI attorney can isolate issues to attack the State’s drunk driving prosecution and produce results. Contact Mr. Tormey anytime for immediate assistance at (201)-330-4979.


If you’ve been charged with a criminal offense, disorderly persons offense, or traffic / DWI violation, you have the right to an attorney who will defend you against your charges and fight for your best interests. To learn more about how your attorney can fight to have your charges dismissed or reduced, click a link below to see our video library of legal defenses and strategies.