I wasn’t fortunate to have done a lot of travelling when I was a young person. When I did travel, it was usually very modest in nature. Such was my trip to Miami Beach in the winter between first-year semesters at law school. I had a childhood friend who had moved there after college. He agreed to let me visit for a week. Honestly, I can’t remember anything we did, except that he believed I had come to spy on him on behalf of his parents! Yes, there was some dysfunction on a number of levels in my friend’s young life.
Anyway, as much as I don’t remember what I did in Miami, I do remember driving from New Jersey to Miami and back. Going down, I used good sense in staying in a certified flea-bag motel after driving about 12 hours to somewhere in South Carolina before completing the trip the next day. By the way, this was before the completion of Interstate 95, so we would meander on and off of local roads where the interstate was incomplete. I did not use such good judgment, though, coming back to New Jersey, when I tried to drive my used Oldsmobile (with three on the floor) door-to-door, without anything more than a few pit stops.
What remains in my mind however, is driving through the Carolinas late at night and tired, when I heard the Rolling Stones’ “Gimme Shelter” on the AM radio. It was almost hypnotic for someone in the middle of Southern nowhere, driving endlessly on a dark, unfamiliar road. Other than being recognized as one of the top rock songs ever, the confluence of music and circumstance in which I found myself that night, left a lasting impression.
Eventually, I made it back to New Jersey, although the last hour or so tested my endurance. I remember rolling the windows down and turning the music up to the max, to keep awake so I could drive up the driveway in one piece. I got ‘er done, although the better course would have been to get some temporary shelter and a little sleep along the way. So, shelter can be a good thing under most circumstances. That is, however, unless driving home after consuming some adult beverage!
I represented a woman some time ago who had gone out on a Saturday night to socialize with friends. She was a good person with a great job, great family and great driving record. She also had a good head on her shoulders, good enough to get her to pull off the road and into a motel parking lot a few minutes after leaving her friends, because she didn’t feel right. After parking her car, she called her brother to pick her up. Unfortunately, her brother arrived about the same time as the local police. The motel attendant noticed her sitting in the car and had called the police department.
The argument we made was that although my client had operated the car the mile or so from the bar to the motel, she had taken the car out of operation by parking it off the road and making arrangements for a ride the rest of the way home. The presence of her brother on the scene was surely proof of her intent not to continue operation of the vehicle from the location where it had been parked.
The fact remained however, that she operated the car to get to the motel in the first place. The State argued (and successfully, I might add) that that was all that was needed to satisfy the element of operation. But, should it have been?
The Supreme Court of our state has opined on many occasions that the legislative intent of our DWI laws was to “rid the roads of drunken drivers.” In other cases such as State v. Tischio, 107 N.J. 504 (1987), regarding the extrapolation of breath test results, the court suggested that our statute was not intended “to encourage a perilous race to one’s destination.” Surely, pulling one’s car off the road and calling for a ride fully meets that legislative intent.
Other states have looked at this issue and recognized the social value of drivers pulling their cars off the road, and calling for a ride home after taking their cars out of operation. In Arizona, this is referred to as the Temporary Shelter Doctrine. In Maryland, it is referred to as the Stationary Shelter Doctrine. In New Jersey, it is referred to as the operation needed to obtain a conviction for Driving While Intoxicated.
To say the least, we live in “interesting times“ today. It is no longer good enough to be “politically correct” in taking positions on important social issues. We need substance in our decisions and laws that will be practical in moving our society forward and solving social problems such as dangerous vehicle operation after excessive substance use. Public policy must be more than winning a news cycle in a national or statewide race for office or currying favor from one group or the other.
“Oh, the storm is threat’ning, my very life today … if we don’t get some shelter, oh yeah we’re gonna fade away ….”
Peter Lederman is a partner with Davison, Eastman, Munoz, Lederman & Paone in Freehold. His practice is limited to representing defendants charged with DWI and related offenses.