Though unpublished, the ruling is notable for its departure from the New Jersey courts’ usual strict tendency to uphold drunken driving convictions based on observational evidence of any form of operation of a vehicle.

In State v. Putz , A-1004-08, the Appellate Division said the trial court ignored credible evidence that the defendant, who was found asleep in his idling pick-up truck after midnight, had no intent to move the vehicle.

“The conclusion that defendant intended to move the vehicle cannot have been made with respect to the moment of arrest, but must have been predicated upon his ‘intent’ before he fell asleep,” said Judges Mary Catherine Cuff and Christine Miniman.

“Here, defendant’s denial of any intention to drive was at least circumstantially corroborated by the testimony of the other witnesses,” they said. “He was in such a deep stupor at 2:00 a.m. when he was arrested that he could not have had any such intent.”

A Lopatcong police officer found Joshua Putz asleep in his truck outside the entrance to a farm where his girlfriend lived at about 2 a.m. on March 8, 2008. The officer noticed the engine was running but the parking brake was off. When questioning Putz, he detected a strong odor of alcohol and performed a breathalyzer test, which showed a blood-alcohol content of .14 percent.

Charged in municipal court with driving while intoxicated, Putz testified and called witnesses to testify that he had not driven the vehicle but only occupied it. According to the testimony, Putz lent his truck to a friend, Patrick Fletch, then went drinking with another friend, Jeffrey Hackett, at a restaurant in Phillipsburg. At around 11 p.m. on March 7, Hackett dropped Putz off at his vehicle, which Fletch had left in front of a horse farm where his girlfriend, Kim Gapinski, lived as a tenant.

Putz testified that he had planned on spending the night with Gapinski, but although the farmhouse was within walking distance, he waited outside because he had standing orders from the farm’s operator, Tuesday Remsburg, to call before entering the property after dark. Remsburg in her testimony corroborated the arrangement and said Putz had called on at least 20 prior occasions.

However, Putz waited until after midnight to call Gapinski, explaining that he assumed he would see her outside attending to chores and would get her attention. She didn’t come out, and it was cold and rainy, so he went and turned on the engine to get some heat and called Gapinski from his cell phone, but she did not answer and he fell asleep. Gapinski testified she had fallen asleep and noticed the following morning that she had a missed call from Putz at 12:12 a.m. Putz did not wake up until the officer began knocking on the truck window.

Municipal Court Judge Bruce Jones, finding the testimony incredible, convicted Putz, suspended his license for seven months and imposed $665 in fines and penalties. The Law Division, on de novo review, came to the same result.

But Cuff and Miniman said they were troubled by Jones’ determination. “The judge also said, ‘It’s a completely absurd story,’ although he later said that he would keep an open mind with respect to the issue of operation,” the panel said. “We do not believe that he did so. … Many of the details of [the] story were corroborated by other credible witnesses, yet the judge never modified his initial credibility determination.”

Though citing a long line of cases that have allowed “operation” of vehicles to be inferred from a variety of circumstances indicating defendants had been driving while intoxicated, Cuff and Miniman said “we have found no reported decision sustaining a conviction based on an intent long since dissipated by the time of arrest.”

They saw a factual similarity to State v. Daly , 64 N.J. 122 (1973), where the driver, found asleep with his seat reclined, told police he realized he was drunk when he left a bar and decided it would be best to sleep it off. The state Supreme Court found that merely switching on the engine was not proof of intent to move the vehicle.

The Law Division judge had distinguished Daly because in that case, the driver’s seat was reclined while Putz’s was upright. But Miniman and Cuff said, “We are not persuaded by the Law Division judge’s reliance on the fact that the parking brake was not set, defendant’s seat was not reclined, and he did not tell the officer that he was sleeping, but rather that he was waiting for his buddy as sufficient to infer that he had an intent to operate his vehicle at some unspecified point in time. This evidence is simply insufficient to support a reasonable inference of intent to operate given defendant’s prolonged stupor.”

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