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that in the last 12 months seven other similar appeals had been decided by the Appellate Division but, “each time by unpublished opinion.”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.

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