New Jersey DWI Case Law Update: State v. Mulligan (App. Div. 2025)
January 20, 2026
Case: State v. Mulligan, 2025 N.J. Super. Unpub. LEXIS 2789 (App. Div. Dec. 31, 2025)
Court: Superior Court of New Jersey, Appellate Division
Docket: A-0427-23
Note: Unpublished opinion (R. 1:36-3)
Key Takeaway
The Appellate Division reaffirmed that a DWI conviction may be sustained based on the totality of the circumstances demonstrating “operation” under N.J.S.A. 39:4-50—even where a defendant claims post-operation drinking and the vehicle is found in a private driveway. Admissions, police observations, and credibility findings can together establish operation beyond a reasonable doubt.
What Happened
Police responded to a reported hit-and-run involving a black SUV. Officers traced the vehicle to the defendant’s residence. When an officer arrived, he observed the defendant seated in the driver’s seat with the engine running. The defendant exited the vehicle and denied involvement in an accident. Shortly thereafter, another officer arrived and recorded the interaction.
During questioning, the defendant admitted he had driven home from a grocery store and consumed alcohol earlier that morning. Officers observed front-end damage to the SUV consistent with the report. A breath test later returned a .30% BAC. The parties stipulated the defendant was intoxicated during the police encounter.
At trial, the defendant asserted a post-operation drinking defense, claiming he drank a pint of vodka after arriving home to relieve back pain and had returned to the vehicle only to retrieve cigarettes. The municipal court rejected that account, found operation while intoxicated, and entered a DWI conviction. The Law Division affirmed after a de novo review on the record.
Issues on Appeal
The defendant raised two primary arguments:
- He was not operating the vehicle when officers arrived, despite turning the engine on out of habit.
- Even if there was operation, he was not impaired at the time of operation.
Appellate Division’s Analysis
The Appellate Division affirmed, substantially for the reasons stated by the Law Division, emphasizing:
- Operation can be proven by direct or circumstantial evidence, including admissions and officer observations.
- The court applies the two-court rule, giving deference to concurrent factual and credibility findings by the municipal court and Law Division absent clear error.
- A vehicle’s location in a private driveway does not preclude a finding of operation where the totality of the evidence shows the defendant drove while intoxicated.
The court relied on established precedent, including State v. Thompson, State v. Tischio, State v. George, and State v. Ebert, to reiterate that operation may be inferred from intent to operate, engine running, admissions of driving, and credible police observations.
The defendant’s post-operation drinking claim was deemed unverified and uncorroborated, and the credibility findings below were entitled to deference.
Why This Case Matters for NJ DWI Defense
- Post-operation drinking defenses face significant skepticism without independent corroboration.
- Admissions (even partial) and engine-running observations can independently support the operation element.
- Being found in a driveway does not insulate a defendant from a DWI conviction when evidence shows prior intoxicated driving.
- Appellate courts will rarely disturb concurrent credibility determinations by two lower courts.
Practical Implications
Every DWI case turns on its facts. This decision underscores the importance of:
- Scrutinizing police timelines and recordings (MVR/bodycam);
- Challenging admissions and alleged inconsistencies;
- Developing corroboration when asserting post-operation drinking;
- Preserving issues for appeal with a clear record.
Need Help With a New Jersey DWI Case?
If you or a loved one is facing DWI charges in New Jersey, consult with an experienced NJ DWI attorney who understands how courts analyze the operation element and credibility issues.
Anthony J. Vecchio, Esq.
New Jersey DUI & Criminal Defense Attorney
Former Municipal Prosecutor
Law Office of Anthony J. Vecchio, LLC
Disclaimer: This post discusses an unpublished appellate opinion, which is not precedential under New Jersey Rule 1:36-3, and is provided for informational purposes only.
