DWI Intent to operate is more than a mere possibility to operate

In State v Barfuss, unpublished, the appellate div yesterday reversed a guilty plea and conviction for DWI where the defendant only admitted to having the keys in his pocket and that he could have moved the vehicle if he wanted to before the police came, but didn’t. The case follows in the line of recent operation cases, mostly unpublished, such as Mize and Putz, calling into question (sui silent) the extent to which the “intent to operate” theory of “operation” i.e. State v Mulcahy, can be used by the State.

Jeff Gold