New Jersey Criminal and DWI Lawyer & Attorney : John Marshall Law Firm : Drunk Driving, DUI : Monmouth County, Middlsex County, Union County, New Jersey

The initial reaction to the reduced BAC limit in the state to .08 was that this would pose additional pitfalls for those accused of a DWI in New Jersey. While from a simplistic perspective this may appear to be the case, the tiering for a first offender under the statute has provided an interesting opportunity for the defense. In this regard, the DWI statute, N.J.S.A. 39:4-50 provides for a three month suspension for a first offense where the BAC of the accused is between .08 and .099, and a seven to twelve month suspension where the first offender's BAC is .10 or above. Under the previous version of the statute, the BAC was .10 and the minimum suspension for a first offense was six months. What we now have, therefore, is a statute which limits license suspension to 3 months where there are either no BAC readings or the readings are less than .10 but in excess of .08. Accordingly, when a knowledgeable defense lawyer can either get the BAC readings excluded or reduced below .10, for example, based on a depletion argument, software tolerance argument, cell phone interference, etc., he can eliminate four months of suspension (at a very minimum). Conversely, the tiering of the statute provides an out for prosecutors in these situations insofar as they can still obtain a DWI conviction, albeit for a reduced suspension period. We find that the new statute provides an opportunity to provide an enhanced frequency of reduction in license suspensions for first time offenders.

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A third party who seeks to take custody of an arrested intoxicated driver after he or she has been processed by the police is required to acknowledge the potential civil and criminal liability associated with permitting the intoxicated person to drive. The law enforcement agency releasing the intoxicated driver into the third party's custody must provide the third party with a written notice of the civil and criminal penalties for knowingly permitting an intoxicated driver to operate a motor vehicle. There is no requirement that the third person sign the written notice as a condition of the intoxicated driver's release. The warning drafted by the attorney general admonishes the person who volunteers to transport the intoxicated driver from police custody that he or she would be potentially liable for criminal sanctions and civil liability by permitting the operation of a motor vehicle by the intoxicated defendant.

The attorney general's warning refers to the "allowing" offenses under N.J.S.A. 39:4-50(a) and mentions the license loss, fines, monetary penalties and possible incarceration associated with that offense. There are also vague references in the warning to criminal prosecution in the event the person taking responsibility for the defendant permits or facilitates the defendant's operation of a motor vehicle while still intoxicated. If such a defendant were to become involved in an accident where other persons are injured or killed, the person who took responsibility for the intoxicated driver could be subject to indictment, prosecution, fines, mandatory sentences, and prison time. Finally, the warning advises that permitting an intoxicated defendant to operate a motor vehicle may result in civil liability in the event of an accident resulting in death, personal injury, or property damage.

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The impoundment of motor vehicles of suspected intoxicated drivers is now mandatory. Whenever a person has been arrested for a violation of N.J.S.A. 39:4-50 for drunk driving or for refusing to submit to a breath test, the arresting officer must impound the motor vehicle that the defendant was operating. The vehicle must remain in impound for atleast 12 hours. The law enforcement agency that impounds the vehicle may charge a reasonable fee for towing and storage of the vehicle. The vehicle may continue to be impounded until the fee has been paid.

After the initial 12 hour waiting period, either the defendant or his agent may reclaim the vehicle. The owner or lessee of the vehicle (who is other than the defendant or an authorized agent of the defendant when the defendant is the owner), may reclaim the vehicle prior to the expiration of the 12 hour waiting period provided that such person can meet certain statutory requirements. These include:

1. Presentation of current driving credentials, including a valid license, proof of ownership, proof of lawful authority to operate a vehicle, and proof of current liability insurance;

2. Proof that the operator is capable of operating a vehicle in a safe manner and would not be in violation of any provision of the motor vehicle statutes.

3. Proof that the person receiving the vehicle can comply with any other conditions for release of the vehicle that have been established by the arresting law enforcement agency.

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Although it does not seem logical, many drunk driving arrests every year are conducted inside the home. Normally these home arrests take place either as a result of the suspected drunk driver being followed to his or her home by the police or because the drunk driver attempted to conceal their offense by leaving the scene of an accident. Whatever the underlying reason for an arrest within the home, all of these arrests are conducted by the police without an arrest warrant. Therefore, when the defendant moves to suppress the evidence, the burden will be on the State to show that the entry into the defendant's home was predicated on one or more of the recognized exceptions to the warrant requirement. In the drunk driving context, these exceptions normally involve the following:

Consent: This consent must be given voluntarily and knowingly. The burden is on the State to show the defendant knew he had a right to refuse consent.

Hot pursuit: In Warden v. Hayden, 387 U.S. 294 (1967), the United States Supreme Court recognized the right of police, who have probable cause to believe that a crime has been committed by a fleeing suspect, to pursue that person into his or her home in order to make an arrest. The underlying offense/crime must be serious in nature. In New Jersey, drunk driving and disorderly persons offenses are not generally considered serious enough for the purpose of making a warrantless home entry during hot pursuit.

Exigent Circumstances: Police may enter a home without a warrant to make an arrest if, (1) the police have probable cause to believe that the suspect has committed a crime and (2) the police must be confronted with exigent circumstances that require the immediate entry into the home in order to prevent escape, loss of important evidence, or to prevent death or bodily injury to a person. The exigent circumstances require the police take immediate action and make it impractical to seek a warrant.

Seizure outside the home: An officer may seize a suspect, either by arrest or detention, outside the suspect's home. If the suspect attempts, thereafter, to enter his own home, the police may follow the suspect into the home for the purpose of continuing the seizure or completing the arrest.

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N.J.S.A. 39:3-74 provides that New Jersey registered motor vehicles may not be driven with non-transparent materials affixed to the windows or lights. This concerns all the vehicles with tinted windows on the front driver's side or passenger's side. Based on this statute, New Jersey police conducted motor vehicle stops based on the presence of tinted windows on the vehicles. In State v. Cohen, 347 N.J. Super 375 (App. Div. 2002), the Appellate Division held that the statute in question does prohibit the use of tinted windows that fail to meet certain standards set forth in the New Jersey Administrative Code. The Appellate Division also concluded that the motor vehicle stop in Cohen could be justified under the community caretaking exception. The darkened windows of the vehicle were subject to inspection by the officer in order to determine if the equipment constituted a hazardous condition. Also, the traffic stop in Cohen was also justified under the common law right of inquiry, in that the officer had a reasonably-founded suspicion that the vehicle's equipment constituted a violation of the motor vehicle statute.

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In general, a police initiated stop of a motor vehicle may be legally justified by three principles of law under both the Fourth Amendment to the US Constitution and Article I, paragraph 7 of the New Jersey Constitution. First, a New Jersey police officer is entitled to conduct a traffic stop when the officer has a reasonable suspicion that the driver has committed a violation of the motor vehicle laws. Such suspicion may be based upon objectively reasonable evidence that the driver has committed a moving violation or that the vehicle is being operated in violation of the licensing, equipment, or registration laws of the State. The evidence supporting the traffic stop need not be sufficient to support a conviction and does not need to be based upon probable cause. All that is required is reasonable suspicion.

A second justification for a motor vehicle stop in New Jersey is the community caretaking exception to the warrant requirement. This exception, which I have previously discussed in various articles, essentially allows the police to stop a motor vehicle when there is objectively reasonable evidence for the police officer to conclude that something may be wrong with the vehicle or the driver.

A third justification for a traffic stop is based on New Jersey common law: Police have the right and obligation to effect a motor vehicle stop and inquire of a vehicle's occupants when the police have objectively reasonable evidence to suggest that criminal activity is being planned or conducted.

The Chief Administrator of the Motor Vehicle Commission in New Jersey has been given the authority to create rules and regulations controlling the necessary equipment to be used on motor vehicles that are registered in NJ. All vehicles that are registered in this State must be properly equipped at all times. When a vehicle is not so equipped, it is in violation of the law and becomes subject to a motor vehicle stop by the police based upon one of the three reasons I just discussed. However, if a police officer effects a motor vehicle stop based upon a perceived violation for an equipment issue that does not actually exist, the stop is not justified under any theory as being objectively reasonable. The police officer's good faith and subjective belief that he or she witnessed a violation are essentially irrelevant.

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If a vehicle is to be impounded in New Jersey, does a driver or passenger have the right to remove personal possessions from the vehicle before the impoundment or inventory search? According to the New Jersey Supreme Court, occupants of an impounded motor vehicle maintain the right to make suitable arrangements for their personal possessions prior to an inventory search of an impounded motor vehicle. In State v. Mangold, the Court held that police have an affirmative duty to provide the vehicle's occupants a reasonable opportunity to remove personal effects from an impounded motor vehicle prior to an inventory search. This assumes that the owner or other responsible individual is present at the time of the lawful impoundment. If this is the case, absent consent by the owner or other responsible party, the impounded vehicle may not be subject to an inventory search. In such cases, the owner or other responsible person will be presumed to have assumed the risk for any claims of loss or theft arising from the impoundment.

The rights afforded to the owners and operators of motor vehicles that are subject to an inventory search following an impoundment are based on Article 1, paragraph 7 of the New Jersey Constitution and are intended to afford people in New Jersey enhanced protection. Both the initial impoundment and the subsequent inventory search must be lawful. Also, the enhanced protections under the New Jersey Constitution apply even when the vehicle is impounded for the purpose of civil forfeiture.

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The New Jersey view on impounding vehicles and inventory searches concerns the procedures surrounding the impoundment of a motor vehicle. New Jersey police must give the driver of the car a reasonable opportunity to make arrangements for the care of the vehicle before the police may impound it and conduct an inventory search. This rule applies regardless of whether the driver is to be taken into custody for a violation of law or the driver simply receives a ticket for the violation. Unless the driver gives his or her voluntary consent to the impoundment, the police must first give him or her an opportunity to make arrangements for the care of the vehicle.

Typically, if the driver is stopped by the police and is unable to continue his operation (because he is driving on a suspended license or because there is a bench warrant out for his arrest) the police must give the driver an opportunity to make arrangements for the care of the vehicle. The driver can arrange for a substitute driver to take the vehicle and the police may permit the operator to safely and legally park the vehicle rather than having it impounded.

Certain statutes provide police with authority to impound motor vehicles. For example, N.J.S.A. 39:3-4 authorizes police officers to remove any unregistered vehicle from a public highway. Also, police may remove from the roadway any disabled or unattended vehicle that blocks traffic. This statutory authority comes from N.J.S.A. 39:4-136. As long as the proper procedures are followed for a valid impoundment and inventory search, this is a valid exception to the warrant requirement.

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As part of the community caretaking function, police departments frequently impound motor vehicles for reasons other than law enforcement. Motor vehicle accidents may leave vehicles in a spot where they block traffic or constitute a dange to the driving public. Also, improperly parked vehicles are sometimes removed from the highway for public safety reasons. Motor vehicles are also impounded by the police for law enforcement purposes. The vehicles may be unregistered or uninsured. They may contain evidence of a crime or the car itself may be connected to illegal activity. Police routinely conduct an inventory search of a motor vehicle after it is taken into custody.

The inventory search is conducted for multiple reasons. First, the police have an obligation to protect the owner's property while the vehicle remains in police custody. Police departments also need to protect themselves against unwarranted claims or disputes over lost, damaged, or stolen property. The US Supreme Court has viewed inventory searches as a result of a lawful impoundment of a motor vehicle to be reasonable under the Fourth Amendment to the US Constitution. This is, therefore, another valid exception to the warrant requirement and constitutes a valid warrantless search under the Constitution.

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