Police officers can charge you with drunken driving, or more commonly known as driving while intoxicated or just DWI, if they find you sleeping and drunk behind the wheel of a parked car. That’s nothing new, a state appeals court ruled in a sternly worded decision.

The court reaffirmed the long-standing interpretation of the law, which says that “operating” a vehicle does not necessarily require actually driving it, in a decision published last week. The only reason they published the decision was because of an uptick in challenges to the long-held standard on such cases.

“We readily acknowledge this opinion expresses nothing new,” the three-judge panel wrote, noting that they have addressed this topic seven times in the past year. “We have been driven to publish because of the extraordinary number of times the court has recently faced this precise issue.”

The decision stems from the September 2017 arrest of John Thompson in Wanaque, in Passaic County. Officers found Thompson sleeping behind the wheel of his running car outside a 7-Eleven store with a half-eaten sandwich and prescription bottles on the passenger seat, police said.

Thompson told police he’d been asleep for about 40 minutes. He smelled strongly of alcohol, police said. After failing a field sobriety test he was taken to the police station, where he admitted to being on prescription methadone, hydrocodone, Xanax and Cymbalta, and having had two drinks, police said.

His argument against the arrest was threefold: police could not determine he was drunk when he was actively driving; a back injury makes the results of field sobriety tests unreliable; and DWI didn’t apply because he was asleep and therefore unable to make the decision to drive.

“Our theory of the evidence was that (Thompson) arrives in fine condition, buys a sandwich and takes his meds. Something goes wrong and he passes out. When? Who knows? Did he form a present or future intent to operate? Who knows?” his lawyer, James Abate, told NJ Advance Media.

Thompson refused to take a breath test and an extensive surgical history makes standardized field sobriety tests not a good measure of impairment, Abate said.

The appellate court wasn’t having that argument.

“Although a violation of [this statute] is commonly called a DWI (‘driving while intoxicated’), the statue actually makes no mention of ‘driving’....," the court wrote, noting that the law just prohibits “operation,” or the intent to drive.

Citing four different previous cases dating back to 1963, the judges say “operation” clearly includes more than just driving. It extends to "sitting or sleeping in a vehicle, with the engine running, even when the vehicle isn’t in motion,” and includes any evidence that shows intent to drive a car.

Abate said that intent was missing in this case. "He was never showing a present intention to operate his vehicle because he takes his medication, passes out, and chances are, he would wake up and still feel woozy and he would not be driving,” he said.

The standard of intent applied in this case would make New Jersey roads less safe, because it would discourage other drivers from pulling over to sleep it off, Abate argues.

“There is not an incentive for people who have had too much to drink to not pull over because if you pull over, and say, ‘I’ve had too much to drink, don’t want to hurt anyone, don’t want to hurt myself,’ but you’re going to get arrested anyway, why even bother?” Abate said.

Abate said he plans to appeal this case to the Supreme Court of New Jersey on the grounds the municipal court failed to establish intent, or that Thompson was intoxicated when he drove to the 7-Eleven.

“They way (the appellate court) stated the case mistakes the law and quite frankly its troubling to me that the appellate decision is trying to discourage people from their right to an appeal,” Abate said. “If they feel the trial court has gotten the case wrong, they should be able to appeal the case.”

Katie Kausch may be reached at kkausch@njadvancemedia.com. Follow her on Twitter @KatieKausch. Find NJ.com on Facebook.

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