TRENTON – A state appeals court has affirmed, yet again, that somebody doesn’t have to be driving to be convicted of driving while intoxicated.

The latest case comes out of Passaic County, where Anthony Damico had been arrested in 2019 after police found him asleep outside Maggie's Town Tavern in Wayne in the driver’s seat of his Ford Ranger, slouched toward the truck’s passenger seat, with the truck’s engine running and its brake lights and turn signal on.

“Although no one observed defendant drive, the condition the pickup was found in, coupled with defendant's failure to tell police he was waiting for a ride, provided ample evidence of the possibility of motion,” the court said.

The municipal court trial was delayed until 2021. At the trial, Damico’s brother testified that he had gotten a call from his brother between 10 p.m. and 11 p.m. asking for a ride home but was delayed because he had to pick up two other friends and didn’t arrive until after 2 a.m.

Damico testified that he wasn’t planning to drive home but turned on his car for heat because he was cold.

But he didn’t tell police his brother was coming, which caused a municipal court judge to later find him not to be credible. He also lied to police because he was on probation and feared getting in trouble and said he hadn’t been drinking.

The municipal court judge sentenced Damico to 180 days in jail, an eight-year loss of driving privileges, installation of an ignition interlock device, 12 hours at a resource center for intoxicated drivers and fines and penalties.

A Superior Court judge and now an appeals court have upheld that conviction.

“We broadly interpret the term 'operates' to include more than driving,” the appeals court said.

“The record contains ample credible evidence to support finding beyond a reasonable doubt that defendant had demonstrated an intent to drive,” it said. “Officers found defendant in his pickup late at night with the engine running. The truck's turn signal was on, and the brake lights activated. The officer saw defendant's foot on the brake pedal when he looked into the truck upon his arrival.”

State courts have repeatedly dealt with the issue and continue to, even though an appeals court attempted to settle the question in 2020.

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Michael Symons is the Statehouse bureau chief for New Jersey 101.5. You can reach him at

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