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Rule 1:36-2(d) provides general guidelines for publication of opinions. Opinions of the Appellate Division, as noted in R.1:36-2(a) are published only upon the direction of the appellate panel issuing the opinion. Although there are eight reasons given in the guidelines for an appellate panel to decide on publication, the case of State v. Thompson decided on Feb. 10, 2020, appears to broaden those guideline categories. The court's opinion, which has been approved for publication, states that although the Thompson opinion "expresses nothing new," the court felt driven to publish an opinion in this case "because of the extraordinary number of times the court has recently faced" the issue of whether an intoxicated person, sleeping behind the wheel of a parked car with its engine running, can be convicted of "operation" of the vehicle while intoxicated.

The issue which the Appellate Division focused on in Thompson was the definition of "operation," which had been the subject of Supreme Court and numerous Appellate Division cases for decades. The court, in explaining its reason for publishing the Thompson case, noted that in the last 12 months seven other similar appeals had been decided by the Appellate Division but, "each time by unpublished opinion." By publishing this particular opinion, the court wanted to give broad notice to the bar that this issue is a settled one, impliedly urging attorneys who represent defendants charged with violation of N.J.S.A. 39:4-50(a) not to further appeal convictions in the municipal court or the Law Division.

In Thompson, the basic facts allowed inferences to be drawn which certainly would sustain a conviction in the municipal court and the Law Division, as affirmed by the Appellate Division. The facts stated in the opinion are that defendant was found sleeping behind the wheel in a parking lot with the engine running, after he had been sleeping for 30 to 40 minutes, when discovered by police officers who also smelled a strong alcoholic odor. Defendant admitted to a couple of drinks and to add additional context was unable to satisfactorily perform several field sobriety tests. The point at issue, as in all of these types of cases, was whether the evidential facts permitted the trial court to find whether the defendant, beyond a reasonable doubt, had "formed a conscious intention" to operate his vehicle while intoxicated when he awoke. The New Jersey Supreme Court case which is the gold standard on the "intent" issue was not cited in Thompson, nor were the facts in evidence in the other seven cases that drove the appellate panel to publish this opinion as a warning to the bar not to frivolously take up its time. But what if the evidence were different than in Thompson? The Thompson opinion appears to paint too broad a brush in challenging attorneys who represent clients in these cases.

In the 1973 Supreme Court case of State v. Daley, defendant was arrested on a charge of operating a motor vehicle under the influence of intoxicating liquor. He was convicted in the municipal court and again on a trial de novo found guilty in the county court. On appeal, the Appellate Division reversed the defendant's conviction on the ground that defendant was not shown to have been "operating" his motor vehicle within the meaning of the statute. This was a case which the court in Thompson apparently would have told the defendant's attorney not to take the convictions to a higher court.

The facts in Daley were as follows. Defendant was arrested at 3:20 am while sitting in his car in the parking lot of a tavern. At trial defendant testified that he realized he had too much to drink and decided to "sleep it off," to which end he got into his car, reclined the driver's seat and fell asleep but was awakened a few times by the cold and started the engine for heat. He testified that he was sound asleep when the officer rapped on his car window and shined a light into the car. He further testified that he had no intention of driving but, nevertheless, was arrested and charged with operating the vehicle.

The Supreme Court, in affirming the Appellate Division holding that defendant was not shown to be "operating" his motor vehicle within the meaning of the statute, noted that defendant denied any intent to move or drive his car until he had sobered up and that there was no evidence from which any such contrary intent could be inferred beyond a reasonable doubt.

The salient point is that there are evidential facts in specific cases which might be accepted by a municipal court or Superior Court judge who would acquit on those facts because of a failure of proofs supporting "intent" beyond a reasonable doubt. There might be, and in past cases have been, facts which an appellate panel might, as in Daley, find legally unconvincing to support an intoxication conviction beyond a reasonable doubt.

That is a problem which the Thompson opinion overlooks in its admonition to lawyers that appeals from a conviction of an intoxicated person, sleeping behind the wheel of a parked car with its engine running, fits all cases. Therefore, should attorneys representing clients, whose evidence may be more compelling than Thompson, not file an Appellate Division appeal if they have a good faith basis within the context of evidence in the record of that case? We think the Thompson blanket admonition is probably not the wisest basis to issue a generic edict because of the seven other cases, whose facts were not provided in Thompson, the court assumed that a dead end sign should be erected for all sleeping driver cases.