Appellate Division Judge Clarkson Fisher Jr./photo by Carmen Natale

After a year of hearing questions of whether sleeping behind the wheel constitutes vehicle "operation" under the law, a New Jersey appeals court has ruled in a published decision that sitting in the driver's seat while drunk, even if the car is stationary, qualifies as driving under the influence.

The Appellate Division on Monday reached its ruling in the case of defendant John Thompson, who, according to the court, was allegedly found by police sleeping in his car in a Wanaque 7-Eleven parking lot on Sept. 17, 2017, after drinking alcohol and consuming multiple prescription drugs.

Upholding Thompson's conviction, Judge Clarkson Fisher Jr. wrote in State v. Thompson that now is the time to set the record straight.

"In so holding, we readily acknowledge this opinion expresses nothing new. We have been driven to publish because of the extraordinary number of times the court has recently faced this precise issue," Fisher said, joined on the panel by Appellate Division Judges Allison Accurso and Robert Gilson.

"Seven other times within the last twelve months—each time by unpublished opinion—we have considered whether an intoxicated person, sleeping behind the wheel of a parked car with its engine running, can be convicted of N.J.S.A. 39:4-50(a)," Fisher said. "For the benefit of the public, as well as the bench and bar, we deem it appropriate to express our holding in a published opinion."

According to the decision, Thompson appealed his DWI convictions for refusing to submit to a breath test. He argued that the evidence against him did not support the statutory definition of operating a vehicle since the record shows he was found sleeping behind the wheel with the engine running, not driving.

But the court disagreed.

"Operation, for example, includes sitting or sleeping in a vehicle, with the engine running, even when the vehicle isn't in motion. Indeed, the Supreme Court has recognized that 'operation' may be found from evidence that would reveal 'a defendant's intent to operate a motor vehicle,'" Fisher said.

"Indeed, the Supreme Court has held that an individual who staggers out of a tavern but is arrested before he is able to insert a key into his vehicle's ignition may be convicted of N.J.S.A. 39:4-50(a)," Fisher said.

Thompson's attorney, James Abate of Somerville, said he and his client "are obviously disappointed in the result" and are considering further appeal.

"It seemed that the Appellate Division was reacting to a number of appeals recently filed on operation issues while sleeping. However, it did not address our issues, which went more to the intent, as the police were unable to determine when our client became incapacitated because they did not investigate drug issues in the vehicle," Abate said.

The Passaic County Prosecutor's Office, which represents the state in Thompson's case, didn't immediately respond to a call for comment.