“Operation” of a Vehicle Under N.J.S.A. 39:3-40

The offense of driving with a suspended license is set forth at N.J.S.A. 39:3-40 and only applies to situations where there is “operation” of a motor vehicle. While the element of operation is obvious in most cases, there are scenarios where this is not the case. For example, when someone is sitting in a car listening to the radio or sleeping in his or her vehicle, is this elements satisfied. To answer this question in cases like this, the courts have formulated four (4) approaches for resolving this issue. The four (4) methods are:

  1. Stipulation by the state and defendant that the vehicle was being operated;
  2. Direct evidence of operation (e.g. physically observing the individual driving the vehicle, etc.);
  3. Circumstantial evidence of operation (e.g. found seated behind the wheel following a collision, etc.); or
  4. By admission from the defendant.

Evidence of “Operation” of a Motor Vehicle

In most cases, operation under the NJ Operating While Revoked Law will be substantiated through direct evidence, namely, testimony from a police officer, that he witnessed the defendant driving the vehicle. Technology also allows for videotape of operation in many cases since the majority of police cars are now equipped with mobile video records (“MVR”). Where there is no direct evidence, circumstantial proof may be utilized by the police and prosecutor to prove operation. Any admissible evidence that will support an inference that the defendant was driving is considered circumstantial evidence. Direct admission by the defendant that he was the operator the vehicle will also suffice in proving operation.

Establishing operation in a driving while suspended case can be very fact sensitive and an experienced attorney can prove extremely beneficial in this situation. Knowing the right facts to elicit and how to argue them properly, are things that a seasoned lawyer like those at firm have the skill to present. Give us a call.