New Jersey Criminal Defense Law Blog : New Jersey Criminal Defense Lawyer & Attorney : John Marshall Law Firm : Drug Crimes, Domestic Violence : Monmouth, Middlesex & Union Counties

There are several important issues that can be raised that are unrelated to the level of intoxication of the defendant. The first involves the legal justification for the motor vehicle stop. Both the Fourth Amendment to the US Constitution and Article 1, paragraph 7 of the New Jersey Constitution ban one type of search and seizure, one that is unreasonable. Searches and seizures that are undertaken without the authority of a judicially issued warrant are presumed to be invalid and thus unreasonable under both the State and federal constitutions. Therefore, in every drunk driving case it is the State's responsibility to demonstrate that the police seizure of the defendant's motor vehicle by way of a motor vehicle stop and any subsequent search of the defendant or the vehicle were reasonable. The physical evidence recovered from the search of a motor vehicle, such as drugs or beer cans, may constitute powerful direct or circumstantial evidence of guilt. The justification for the motor vehicle stop must be based on reasonable suspicion. If it is not, it may result in the suppression of all the prosecution's evidence. After the determination that the stop is supported by reasonable suspicion, the arrest for drinking and driving must be based on probable cause. This is a warrantless arrest by a police officer which is allowed under the New Jersey drinking and driving statute, N.J.S.A. 39:4-50. In essence, the probable cause determination is based on the totality of the circumstances presented to the officer and need only be objectively reasonable to be legally sustainable. When the arrest of a suspect for drinking and driving is found to be unreasonable because it was not based on probable cause, all evidence stemming from the arrest, including physical evidence seized incident to the arrest and the results of breath or blood tests may be subject to suppression. This is all based on the Fourth amendment protections against unreasonable search and seizure.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

We are many times confronted with the question of whether or not you can "cure" a refusal after refusing initially to submit to a breathalyzer test. The answer is no. This issue was examined in State v. Bernhardt, 245 N.J. Super 210 (1991). In this case, the defendant refused at least 10 requests from the State Police to submit to a breathalyzer test. The police, for good reason, considered his conduct sufficient to constitute a refusal. However, after he spoke with an attorney by phone, he asked the police if he could take the breath test. The police, at this point, declined to administer the test. The Appellate Division held that there is a bright line rule of law in New Jersey that there is no right for a defendant to "cure" an initial refusal to submit to the breathalyzer test by agreeing to submit to the test later. Under the public policy of the implied consent law, there is no right to cure an initial refusal to submit to a breathalyzer test. State v. Corrado, 184 N.J. Super 561 (1982).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There is significant case law as to what constitutes a refusal under N.J.S.A. 39:4-50.4a. A defendant who simply remains silent in the face of a police request to submit to a breathalyzer test has refused to take the test. The police have no obligation, when confronted by a defendant who remains silent when asked to submit to a breath test, to set up the machine and lead the defendant to the machine and hold the hose to his or her mouth. State v. Sherwin, 236 N.J. Super 510 (1989).

It does not take much to constitute a refusal to submit to a breath test. "Anything substantially short of an unqualified, unequivocal assent to an officer's request that the arrested motorist take the test constitutes a refusal to do so. The occasion is not one for debate, manuever or negotiation, but rather for a simple 'yes' or 'no' to the officer's request." State v. Pandoli, 109 N.J. Super 1 (1970).

In State v. Geller, 348 N.J. Super 359 (2001), the defendant failed to provide an adequate sample to five of the six attempts he made blowing into the breathalyzer machine. These actions by the defendant, coupled with his hostile, uncooperative attitude toward the arresting police was sufficient evidence of an intent to refuse to submit to the breathalyzer analysis.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Confusion doctrine is a very narrow defense to refusal charges in New Jersey. There is a statutory duty to take a breath test and any refusal to do so usually results in charges for refusal as well as a DWI (because they can prove intoxication by using the field sobriety tests and video). However, there is an inherent contradiction in informing a defendant under Miranda that he generally has the right to remain silent and speak to an attorney for legal advice, but that these rights do not apply to the taking of a breath sample. This contradiction may cause confusion in an intoxicated defendant. Accordingly, a defendant may, under certain limited factual circumstances interpose a defense to a refusal charge based upon confusion. As the Supreme Court has held, "We recognize that despite the best of efforts some confusion may remain. Without resolving whether any defendant may validly assert the defense, we agree with the view expressed in the Attorney General's brief that the exclusive, narrow exception to the general rule that refusals cannot be validly justified, would have to be premised on a record developed by a defendant to show that he had indeed been confused. We also agree that it is entirely appropriate that a defendant bear the burden of persuasion if he wishes to establish a confusion claim. We suspect that in most cases the defendant makes a more practical than legal judgment about exercising the statutory right to refuse a blood alcohol test in light of the generally known consequences." State v. Leavitt, 107 N.J. 534 (1987).

Therefore, the defense of confusion is available in very limited circumstances to refusal charges where the defendant can show that he or she was confused about the right to remain silent versus the right (or lack thereof) to refuse to submit to the breathalyzer test.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There is a right to an independent blood test under New Jersey drinking and driving laws. A defendant may successfully challenge the introduction of a breathalyzer examination when he or she is "informed of his right to have an independent examination and attempts to take advantage of that right, but is not afforded a meaningful opportunity to have the independent test conducted. That is, it must be shown that the absence of established police procedures has interfered with or thwarted defendant's attempt to exercise the right to an independent examination." State v. Jalkiewicz, 303 N.J. Super 430 (1997). In this case, the arresting officer's summoning of the cab immediately upon completing the breathalyzer tests on defendant, taken in conjunction with his prior advice to defendant concerning the right to an independant test, was all that was necessary to further defendant's exercise of his right. Rather than seek an independent blood test, the defendant used the cab to take himself home. Thus, there was no thwarting of the defendant's right to have an independent test. It is only where the absence of police procedures interfere with the defendant's attempt to exercise his statutory right that relief must be given. Id.

However, where the evidence demonstrates that the police thwarted defendant's opportunity to arrange a meaningful independent blood test, the appropriate sanction is a suppression of the blood test results. However, a defendant may still be found guilty based upon observation evidence that he operated his motor vehicle while under the influence of alcohol. State v. Broadley, 281 N.J. Super 230 (1992).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The doctrine of implied consent means that every individual who drives a vehicle in New Jersey is consenting to a breathalyzer test if they are stopped by a law enforcement officer. The stop must be supported by probable cause and there must be reasonable suspicion that the driver is in fact intoxicated. This doctrine of implied consent was discussed in the New Jersey Supreme Court decision of State v. Wright, 107 N.J. 488 (1987). "The legislative history of the consent and refusal statutes clearly indicates that the Legislature enacted these statutes to facilitate drunk driving investigations. They were designed 'to enable the enforcing authorities to reach out during the very short window in time during which the scientific evidence of intoxication is available, in order to examine a class whose proximity to the event indicates that the members of that class may have a contribution to make to the search for the truth." Clearly the public policy indications behind the implied consent doctrine is to aid law enforcement in pursuing and apprehending drunk drivers.

This doctrine has also been discussed at the trial level in New Jersey. The statute in question provides that operators are deemed to have given their consent to the taking of samples of breath for the purpose of making chemical tests to determine the amount of alcohol in the blood. The clear wording of the statute indicates that operators are deemed to consent to give more that one breath sample to determine the amount of alcohol in the blood. Moreover, "a second breath sample is for the benefit of the accused because any disparate results will alert the operator of a potential mechanical malfunction of the machine." Inaccurate and false readings are discovered and may be disregarded. Those who test under .08% will not be prejudiced by the administration of the second test, "as law enforcement officials will count only the lower of two breathalyzer results, obtained 15 minutes apart, as evidence against the suspect." State v. White, 253 N.J. Super 490 (1991)

Finally, in State v. Hudes, 128 N.J. Super 589 (1974), the trial court stated "The implied consent statute was conceived and enacted for laudable public purposes and to serve valid state interests, including the avoidance of the use of force in obtaining samples, to assist in obtaining the most reliable evidence of driving while intoxicated, and to reduce the number of death-dealing drunken drivers on the highways by administrative sanctions, including the suspension of drivers' license privileges."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As a criminal defense firm, we are frequently contacted by individuals facing serious criminal charges not related to a drinking and driving charge or other motor vehicle offenses. However, we often are asked about the relevance of past DWI convictions on the defendant's ability to be admitted into the Pre-Trial Intervention Program in New Jersey. Pre-Trial Intervention, also known as PTI, is a diversionary program in New Jersey that basically gives individuals with little or no prior criminal history another chance as long as they stay out of trouble for a certain period of time. What effect does a prior DWI conviction have on an individual's ability to receive PTI in New Jersey? The short answer is very little effect. In State v. McKeon, 385 N.J. Super 559 (2006), the Appellate Division held that neither a New Jersey drunk driving conviction nor a diversion from the criminal justice system for a drunk driving offense in another jurisdiction acts as a statutory bar to admittance into Pre-Trial Intervention (PTI).

Moreoever, in State v. Negran, 178 N.J. 73 (2003), the court stated that it is clear a past motor vehicle offense is not a criminal event for purposes of PTI evaluation. We recognize, however, that a driving history can have some limited relevance to a PTI application if there is a strong substantive and temporal relationship between the past motor vehicle offenses and the offense with which the PTI applicant has been charged. In such settings, a driving record could demonstrate that a defendant has engaged in a pattern of anti-social behavior as contemplated in N.J.S.A. 2C:43-12e(8).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The following are important New Jersey Supreme Court decisions concerning the admissibility of breath test results. In State v. Garthe, 145 N.J. 1 (1996), the Court held that the protocols established by the State police for testing breathalyzer machines must be designed to ensure the machine will produce reliable results, but that the adoption of those protocols is more akin to a State Police intra-agency determination rather than rulemaking. Therefore, adoption or modification of the protocols need not comply with the Administrative Procedure Act.

Furthermore, in the same court decision, the Court established that absent evidence that the test protocols established by the Division of Criminal Justice and State Police are not scientifically reliable to establish that the breathalzyer machines are in proper operating order, the State may, subject to the business records and public records exceptions to the hearsay rule, offer Breath Test Instrument Inspection Certificates as admissible evidence in DWI trials. Id. at 13-14. This remains the norm in New Jersey DWI trials as these inspection certificates are key in establishing the reliability of the breathalyzer readings.

Finally, in Romano v. Kimmelman, 96 N.J. 66 (1984), the New Jersey Supreme Court held that a breathalyzer test result is admissible in a DWI prosecution only if it is first established that "the breathalyzer instrument is in proper working order, is administered by a qualified operator and is used in accordance with accepted procedures." The State bears the responsibility for establishing all conditions of admissibility by clear and convincing evidence.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Many times clients ask about the famous "Miranda" warnings and the validity of their DWI charges if the law enforcement officers failed to give the Miranda warnings at certain points. There are a few landmark New Jersey Supreme Court cases on point addressing these issues. First, the taking of a breath test is non-testimonial in nature and is not covered by the privilege against self-incrimination. State v. Stever, 107 N.J. 543 (1987). Because of the non-testimonial nature of the breathalyzer evidence, there is no requirement that Miranda warnings be given advising the offenders of the right to remain silent. Furthermore, there is no right to consult an attorney or to be advised of Miranda warnings prior to submitting to a breathalyzer test. State v. Leavitt, 107 N.J. 534 (1987). Finally, in State v. Macuk, 57 N.J. 1 (1970), the court held that the taking of a breath sample is non-testimonial in nature. Accordingly, a driver accused of driving while under the influence of alcohol has no right to consult an attorney before determining whether to comply with the legal obligation to submit to a breathalyzer test.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Here is some important case law on sentencing New Jersey DWI offenders. In State v. Luthe, 383 N.J. Super 512 (2006), the Appellate Division held that the amendments to the sentencing provisions of N.J.S.A. 39:4-50(a)(3) effective January 20, 2004, make it clear that a third or subsequent DWI offender must be sentenced to 180 days in jail, subject to as much as 90 days credit for time spent in an IDRC-approved in-patient residential facility. Work release or credits for out-patient therapy are not permitted for these defendants.

Also, in State v. Burroughs, 349 N.J. Super 225 (2002), in order to receive the benefit of a step down in sentencing (being sentenced as a first rather than a second offender or a second offender rather than a third), the defendant must have a period of a full ten years between his second and third offenses. Furthermore, in determining the relevant date for calculating sentence enhancements based upon a prior drunk driving offense, the date of the prior offense controls as opposed to the date of the prior conviction. State v. Bischoff, 232 N.J. Super 515 (1989).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A very important aspect in sentencing for DWI convictions is whether you are categorized as a first, second, or third offender. This categorization can significantly effect the penalties involved. One of the strategies for avoiding categorization as a second or third offender is to argue that your prior convictions were "uncounseled", meaning that the defendant was not represented by counsel in his prior DWI cases. This issue was discussed in the New Jersey Supreme Court case of State v. Hrycak, 184 N.J. 351 (2005). " A defendant is faced with a three-step undertaking in proving that a prior uncounseled DWI conviction should not serve to enhance the jail component of a sentence imposed on a subsequent DWI conviction. As a threshold matter, the defendant has the burden of proving in a second or subsequent DWI proceeding that he or she did not receive notice of the right to counsel in the prior case. He or she must then meet the two tiered test in Laurick (citation omitted). In that vein, if the defendant proves that notice of the right to counsel was not provided, the inquiry is then bifurcated into whether the defendant was indigent or not indigent. 'If the defendant was indigent, the defendant must prove that the DWI conviction was a product of an absence of notice of the right to assignment of counsel and non-assignment of such counsel without waiver.' On the other hand, if the defendant was not indigent at the time of the prior uncounseled conviction, the defendant should have the right to establish such lack of notice as well as the absence of knowledge of the right to be represented by counsel of one's choosing and to prove that the absense of such counsel had an impact on the guilt or innocence of the accused or otherwise 'wrought a miscarriage of justice for the individual defendant.'"

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There is a right to a speedy trial when charged with drinking and driving in New Jersey under N.J.S.A. 39:4-50. The New Jersey Supreme Court held that there are four factors the court must weigh and balance when a defendant asserts a speedy trial claim arising from a delay in a municipal court drunk driving prosecution. State v. Gallegan, 117 N.J. 345 (1989). The factors balanced include: (1) the length of the delay, (2) the reasons for the delay, (3) any assertion by the accused of speedy trial rights, and (4) any prejudice to the accused from the delay.

A recent Appellate Division decision on point is State v. Fulford, 349 N.J. Super 183 (2002). In this case, there was a relatively lengthy delay (a total of 32 months) caused by the State's retention of the municipal court charges until PTI was resolved. It was defendant who applied for PTI and spent 14 months successfully completing the program. As a result, the defendant achieved dismissal of the companion indictable charges, and through most of the delay failed to request a municipal court trial or even make an inquiry concerning his pending drunk driving charge. Accordingly, the defendant's motion to dismiss on speedy trial grounds was properly denied.

On the other hand, in State v. Farrell, 320 N.J. Super 425 (1999), the court concluded that the delay in completing the case was far beyond what was reasonable and was plainly excessive as the case dragged out for over 663 days and 13 court appearances. The reasons for the delay were the prosecution's clear inattention to his responsibilities along with the municipal court's patent failure to prepare itself to try the matter quickly and shepherd it to resolution efficiently. "These shortcomings were so egregious that no showing of prejudice was required in order for this defendant to succeed on his argument that, in fundamental fairness terms, he was denied his adequately (and frequently) asserted right to a speedy trial."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Whether or not the engine is running in the vehicle can sometimes be a key factual element of DWI cases. If the engine is not running, it is difficult to meet the three prong test to show operation. The elements of the three prong test are: physical control over the vehicle, an intent to operate, and an ability to do so. This third prong requires at least that the vehicle be capable of operation. State v. Derby, 256 N.J. Super 702 (1992).

In State v. Dickens, 130 N.J. Super 73 (1974), the defendant was found in his automobile on the shoulder of a highway, which could have only been reached by operation of the automobile to the point where it was found. Defendant admitted that he had been drinking in a bar in Rahway, and admitted that he was driving his car to take someone home to Piscataway when he did not feel well and stopped by the side of the road. Defendant was not in a place which was normal for parking. Furthermore, when defendant was finally aroused from his "deep sleep", according to the state trooper he asked, "what did he hit?" "The inference is inescapable that defendant was in fact operating his motor vehicle while under the influence of intoxicating liquor." Therefore, in this case, because he was asleep with the engine running he was found guilty of driving while intoxicated.

In State v. Sweeney, 77 N.J. Super 512 (1962), the defendant was also found asleep in his vehicle with the engine running. The "defendant's acts, while intoxicated, in entering the automobile, turning on the ignition, starting and maintaining the motor in operation, and remaining in the driver's seat behind the steering wheel, where he was found by the police, justify his conviction as the operator of the automobile. In an intoxicated condition, he was, for all practical purposes, then in control of a dangerous instrumentality."

Finally, in State v. Baumgartner, 21 N.J. Super 348 (1952), the defendant was found asleep in his vehicle with the engine off. Defendant was found by the police with his head over the steering wheel, his right arm hanging through the spokes and the left arm hanging to one side. "There was the smell of alcohol. The defendant's vehicle had apparently stalled; the headlights and ignition were on, but the motor was not running." The officer found the truck some six feet from the curb, standing near an intersection that had no traffic light. These facts constituted sufficient evidence to show operation while under the influence of alcohol.

As you can see, many times these cases turn on where the vehicle is stopped. If the vehicle is on the side of the road of a highway or residential street, it is easier for the State to show operation because the vehicle had to be moved while the person was intoxicated to reach that point. However, if the defendant was sleeping in the car in the parking lot of a tavern or bar or in a municipal parking lot, it is more difficult for the state to show operation, especially if the engine is not running. In these types of cases, there is a strong defense to the DWI charge as the three prongs necessary to show operation can not be satisfied by the State.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Here are some DWI cases in New Jersey with very interesting and sometimes peculiar factual scenarios. In State v. Metcalf, 166 N.J. Super 46 (1979), a defendant, who after being arrested, processed, and released by the police is subsequently arrested again for drunk driving on the same evening may be properly convicted of two separate offenses as his conduct demonstrates two distinct episodes of intoxicated operation. Talk about having a bad day.....two DWI charges in one day, ouch.

In State v. Dannemiller, 229 N.J. Super 187 (1988), the driver ran out of gas and was sitting in his vehicle by the side of the road. The court held that, "It was reasonable for the trier of fact to conclude that the defendant had actually operated the vehicle. Defendant himself stated that he had been in Philadelphia in the early evening and that his vehicle remained parked on the roadway because he had run out of gas. There were no other persons in the area; defendant was in the driver's seat and there was no evidence that any other person was involved with the use of the automobile at the time in question."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Here are a few interesting cases concerning "operation of a motor vehicle" in the context of drunk driving charges in New Jersey. In State v. Morris, 262 N.J. Super 413 (1993), the Appellate Division held that a defendant's attempt to start the engine of his car, which was thwarted when a police officer grabbed the keys from his hand, demonstrated an intent to operate the vehicle. The possibility of the vehicle being put in motion coupled with the defendant's intent to start the engine was sufficient evidence to constitute operation within the meaning of N.J.S.A. 39:4-50(a).

In State v. George, 257 N.J. Super. 493 (1992), the court held that "Operation may be proved by any direct or circumstantial evidence--as long as it is competent and meets the requisite standards of proof. The vehicle's operating condition combined with defendant's presence behind the steering wheel permits the logical conclusion of intent to drive." This is an Appellate Division case that conflicts slightly with State v. Daly, 64 N.J. 122 (1973), which is a New Jersey Supreme Court case that found the State failed to meet the burden of proof for operation when the defendant was sleeping behind the wheel of his car with the engine running. There must be some additional evidence of intent to drive or move the vehicle beyond merely being behind the steering wheel with the engine running. Clearly these issues turn on the specific facts of your individual case.

Finally, in State v. Dannemiller, 229 N.J. Super 187 (1988), the Appellate Division held that "It was reasonable for the trier of fact to conclude that defendant had actually operated the vehicle. Defendant himself stated that he had been in Philadelphia in the early evening and that his vehicle remained parked on the roadway because he had run out of gas. There were no other persons in the area; defendant was in the driver's seat, and there was no other evidence that any other person was involved with the use of the automobile at the time in question."

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Here is an interesting article I came across regarding speeding and DWI offenses in New Jersey and the number of fatalities resulting from each.

"Speed kills more than DWI, survey says"

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Many times clients ask us about possible defenses to charges for drinking and driving in New Jersey. A defense of extreme sensitivity to alcohol is not a defense to DWI charges in New Jersey under N.J.S.A. 39:4-50. "Hypersensitivity to the effects of alcohol does not constitute a defense to a charge of drunk driving." State v. Cryan, 363 N.J. Super 442 (2003). Contributing factors of medication or physical or nervous conditions rendering defendant more susceptible to alcohol are not defenses if such factors caused or contributed to impairment of defendant's faculties. State v. Corrado, 184 N.J. Super 561 (1982). Also, the disease of alcoholism is not a defense to prosecution for drunk driving. State v. Housman, 131 N.J. Super 478 (1974). Finally, the insanity defense is also not available in New Jersey DWI cases as a viable defense. "As with voluntary intoxication, entrapment, and duress, the insanity defense has a high potential for serving as an instrument of pretext." State v. Inglis, 304 N.J. Super 207 (1997). Allowing a defendant prosecuted under N.J.S.A. 39:4-50(a) to assert the common law insanity defense would be contrary to the legislative policy embodied in the statute against permitting defenses based upon a mere pretext. Accordingly, the use of the insanity defense, under both the common law and the Code of Criminal Justice, is not permitted in a DWI case. Id.

These above defenses, therefore, are not available in defending against drunk driving charges in New Jersey.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Plea bargaining is a traditional practice for criminal defense lawyers in attempting to resolve criminal charges for their clients. However, in New Jersey drinking and driving cases this option is not available. All offenses set forth under N.J.S.A. 39:4-50(a), including the offense of permitting the intoxicated operation of a motor vehicle may not be the subject of plea bargaining in municipal court. State v. Hessen, 145 N.J. 441 (1996). The purpose behind the absolute ban on plea bargaining drunk driving cases in municipal court is to preserve "public confidence that a meritorious drunk driving offense will not be bargained away" by the prosecutor. State v. Marsh, 290 N.J. Super. 663 (1996).

Because of this absolute ban on plea bargaining in New Jersey DWI cases, many individuals think that they do not need a lawyer. This is a major error by many individuals charged with a DWI in New Jersey. First, an attorney can challenge the stop for lack of probable cause or reasonable suspicion to believe that the individual is intoxicated. If there is insufficient probable cause for the stop, the DWI charges must be thrown out. Also, the breathalyzer results can be challenged based on the certificate of inspection or the operator. Moreover, even if you do not have defense to the DWI or Refusal, it is imperative that you get the minimum penalties for the charge such as seven months suspended license on a first offense rather than a year. This could have a significant impact on your quality of life for that additional 5 months of your driver's license suspension.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

"Operation" is a crucial element that the State must prove beyond a reasonable doubt when prosecuting an individual for driving while intoxicated (DWI). There is some important case law in New Jersey regarding what constitutes "operation" sufficient to satisfy the State's burden of proof. First, an operator of a motor vehicle is defined as a person who is in actual physical control of the vehicle. One can be an operator without driving. State v. Wright, 107 N.J. 488. Furthermore, when one, in an intoxicated state, places himself behind the wheel of a motor vehicle and not only intends to operate it in a public place, but actually attempts to do so and there is a possibility of motion, he has operated the vehicle within the meaning of N.J.S.A. 39:4-50(a). State v. Mulcahy, 107 N.J. 467 (1987). Moreover, in the landmark case of State v. Daly, 64 N.J. 122 (1973), a person left a tavern at closing time, entered his car in the tavern's parking lot and started the engine to remain warm while "sleeping off" his intoxicated state. The court found that he did not have the requisite intent to operate his vehicle. In addition to starting the engine, evidence of intent to drive or move the vehicle at the time must appear. Finally, in State v. Sweeney, 40 N.J. 359 (1963), the court held that a person operates a motor vehicle under the influence of an intoxicating liquor, within the meaning of NJSA 39:4-50, when, in that condition, he or she "enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains in the driver's seat behind the steering wheel, with the intent to move the vehicle."

As you can see, intent is a key element that the State must prove. We had a client come in recently who is charged with DWI in New Jersey. He was sleeping in his vehicle with the car running and with the driver's seat reclined when he was approached by a police officer and charged with drinking and driving. With the case law discussed above it appears we have a very solid defense against the DWI charge because the State will be unable to prove operation since the driver was sleeping in the vehicle and the seat was reclined, making it almost impossible that he intended to operate the vehicle. The State has to prove this element beyond a reasonable doubt and it appears in that case that they will be unable to do so.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In my previous post I discussed the "under the influence of alcohol" language of the New Jersey drinking and driving statute N.J.S.A. 39:4-50. There is also important case law regarding driving while intoxicated (DWI) prosecutions for driving while under the influence of drugs. The New Jersey Supreme Court considered this issue in State v. Bealor, 187 N.J. 574 (2006). "Expert testimony remains the preferred method of proof of marijuana intoxication. We arrive at that conclusion in the knowledge that it is not too difficult a burden for the State to offer an expert opinion as to marijuana intoxication. Prosecutors in municipal courts throughout the State routinely qualify local and state police officers to testify as experts on the subject of marijuana intoxication. Expert testimony only requires that a witness be qualified 'by knowledge, skill, experience, training, or education.'" Id. An operator of a motor vehicle is under the influence of a narcotic drug within the meaning of N.J.S.A. 39:4-50(a) if the drug produced a narcotic effect so altering his or her "normal physical coordination and mental faculties as to render such person a danger to himself, as well as to other persons on the highway." State v. Dicarlo, 67 N.J. 321 (1975). A lay witness if sufficiently experienced and trained may testify generally as to the observable reaction of drug users and of the technique of the use. State v. Jackson, 124 N.J. Super 1.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

"Under the influence" of alcohol seems fairly easy to define and understand. However, legal interpretation is often very different than a conversational understanding of a word or phrase. This legal term has been interpreted many times by the courts in New Jersey. In State v. Tamburro 68 N.J. 414 (1975), the New Jersey Supreme Court defined "under the influence" of drugs or alcohol as "The language 'under the influence' used in the statute has been interpreted many times. Generally speaking, it means a substantial deterioration or dimunition of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic, hallucinogenic or habit producing drugs." In State v. Johnson 42 N.J. 146 (1964), the Court stated that it was the intention of the Legislature under NJSA 39:4-50(a) (the drinking and driving statute) in forbidding the operation of a motor vehicle while under the influence of alcohol "to prescribe a general condition, short of intoxication, as a result of which every motor vehicle operator has to be said to be so affected in judgment or control as to make it improper to drive on the highways." Moreover, the New Jersey DWI statute "penalizes a person who drives 'while under the influence of intoxicating liquor.' Although prosecutions pursuant to its provisions are commonly and colloquially termed 'drunken driving cases', it is settled that the statute does not require as a prerequisite to conviction that the accused be absolutely 'drunk', in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Emery, 27 N.J. 348 (1958). Finally, in State v. Rodgers 91 N.J.L. 212, the court discussed under the influence by holding: "The expression 'under the influence of intoxicating liquor, covers not only all the well known and easily recognizable conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors, and which tends to deprive that person of that clearness of intellect and control of himself which he would otherwise possess."

As you can see, there is considerable direction regarding the definition of "under the influence"when conducting DWI prosecutions in New Jersey.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Former NFL star and Atlanta Falcons quarterback Michael Vick was sentenced today in Federal Court by the Honorable Henry E. Hudson on dogfighting charges. In an earlier post, I discussed the re-emergence of judicial discretion in sentencing in Federal court following the landmark Booker decision in 2004. This judicial discretion is evident in the 23 month sentence Michael Vick received today. The prosecutors in this case, after negotiating a plea agreement with Michael Vick, recommended 12-18 months incarceration. However, judge Henry Hudson, who has a reputation for being hard on crime, sentenced Vick today to 23 months in federal prison. Vick was facing up to 5 years in prison for his connection with a dogfighting ring. After Vick apologized to the court and his family, Hudson told him: "You need to apologize to the millions of young people who looked up to you." "Yes, sir," Vick answered.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

We had a client come in recently who was charged with DWI in New Jersey. Her breathalyzer readings showed a blood alcohol content of .09 and .08 (the test is administered twice). In New Jersey, in terms of a prosecution for driving while intoxicated, the State is forced to use the lower of the two readings (in this case .08). The legal limit in New Jersey is .08 % BAC. Therefore, this client's readings are right at the legal limit. In this case, you can retain a breathalyzer expert (usually a former State trooper) to show that the breathalyzer machines are not perfect and usually have a .01% human error in the blood alcohol readings. As a result, if we are able to show that this error exists and that the .08% readings are possibly .07% (below the legal limit), the State will be unable to prove driving while intoxicated beyond a reasonable doubt. Therefore, our client will avoid a DWI charge on her record and will avoid a minimum three month license suspension (which is required for BAC readings between .08% and .10 % in NJ).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The recent tragedy regarding the murder of Washington Redskins safety Sean Taylor concerns a legal principle known as the "Felony Murder Doctrine". In this case, there were four individuals involved in the burglary of Sean Taylor's Florida home. These are allegedly some of the same individuals who burglarized his house eight days earlier. During the commission of the burglary (the predicate felony), one of the defendants shot Sean Taylor in the leg. Sean Taylor died as a result of this gunshot wound. According to the felony murder rule, all the participants in the underlying felony are responsible for the murder of Sean Taylor. This is a first degree murder charge even though the murder was not premeditated. Some of the predicate felonies to the felony murder doctrine are burglary, arson, rape, robbery, and kidnapping. If a murder occurs during the commission of any of these underlying crimes, all of the perpretrators involved (even if they did not do the shooting themselves) are charged with first degree murder. Therefore, in the Sean Taylor case, all four burglars are responsible for the death of Sean Taylor and will be charged with first degree murder. They are most likely facing life in prison rather than the death penalty because the shooter was a 17 year old juvenile.

On another note, how does ESPN get away with making up words as they go along? While watching Sportscenter the other night ESPN flashed a story on the bottom line saying that "the four individuals involved in the death of Sean Taylor have been charged with unpremeditated murder". Unpremeditated? That is not a word. Something is either premeditated or it is not....unpremeditated is a double negative.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

We often receive calls from individuals who have a New Jersey Driver's License and have been charged or convicted of driving while intoxicated (DWI) in another State. Basically, this is the procedure. The individual must first contact an attorney in another State (say for example North Carolina). They must then fight the DWI charge in the North Carolina courts and they are subject to the penalties for DWI in North Carolina. All North Carolina can do, because the individual has a New Jersey Driver's License, is suspend the offender's driving privileges in North Carolina and notify New Jersey of the DWI conviction. Then the individual will be subject to DWI penalties in New Jersey as well. Therefore, the matter must first be litigated in North Carolina and there are legal strategies available to avoiding punishment in New Jersey for this out of state DWI conviction. As a result, it is important to contact an experienced DWI attorney in New Jersey in order to avoid having your New Jersey Driver's License suspended by the New Jersey Department of Motor Vehicles for an out of state DWI conviction. There will be a hearing at the Department of Motor Vehicles regarging your out of state DWI charge and it is important to have an attorney represent you in defending this matter.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

We are frequently contacted by out of state drivers who have been charged with DWI, DUI, or Refusal in New Jersey. These individuals do not have a New Jersey Driver's License: They have a motor vehicle license from another state and they were stopped on the roadways in New Jersey and given a summons for drinking and driving. These drivers are bound by New Jersey's drinking and driving laws and they are subject to the penalties associated with that conviction. However, New Jersey has no ability to affect the driving privileges of these individuals in other states because their drivers license was not issued by the State of New Jersey. Basically, therefore, New Jersey can suspend their driving privileges in New Jersey and notify the State in which the drivers license is issued of the DWI conviction. The Division of Motor Vehicles in the home State will then decide what the penalties will be in terms of suspending the offender's drivers license. The New Jersey courts do not have jurisdiction to decide what, if anything, will happen to the drivers license of the offender in the driver's home state.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There are some common law defenses available in DWI cases in New Jersey. Although the defenses generally available under the New Jersey Code of Criminal Justice are not available to a defendant in a drunk driving case (because it is a strict liability offense and a per se violation of the statute), common law defenses may be asserted. For example, the defense of duress under New Jersey common law may be used as a defense in a drunk driving case. State v. Fogarty, 128 N.J. 59 (1992). The easiest way to understand the defense of duress is someone is holding a gun to your head and forces you to drive even though you are intoxicated. This would be a valid common law defense of duress to a charge of drinking and driving in New Jersey.

Double jeapardy also applies in certain circumstances in New Jersey DWI cases. A plea of guilty in municipal court to drunk driving, which included merged offenses of reckless driving and failure to keep right, prevented a subsequent Superior Court prosecution for death by auto arising from the same incident based upon the double jeapardy clauses of the State and Federal Constitutions. State v. Dively, 92 N.J. 573 (1983).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Prosecutions of DWI cases requires that the breathalyzer test be administered within a reasonable time after a defendant is stopped for drunk driving. Judge Haines discussed this issue in State v. DiFrancisco, 232 N.J. Super 317 (Law Div. 1988). "One required proof as to the proper administration of the test is that it be performed within reasonable time after the defendant has been stopped for drunk driving. The State must supply this proof by clear and convincing evidence. In this case the test was given as much as 3 hours and 50 minutes after the drunk driving occurred, unless the defendant was 'driving' at the time of arrest at 3:10 a.m. In either case the State was obliged to prove that the test was given within a reasonable time. This court, absent such proof, has no way of knowing what time is reasonable, a conclusion that must depend on a variety of facts, such as time and the amount of alcohol consumption. The State presented no testimony on that issue and therefore failed to carry the burden of proof, therefore making the breathalyzer test results inadmissible."

Therefore, it appears that a reasonable time after the defendant is stopped is a totality of the circumstances analysis based on the specific facts of each case. Moreoever, the State has the burden of proving that the test was given within a reasonable time.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The breathalyzer fulfills a legislative policy and intent to provide a reliable and fair measure of alcohol in the brain. Accordingly, breathalyzer results can be used in prosecution of a per se offense of drunk driving. Moreover, the reliability of the breathalyzer is subject to judicial notice in drunk driving prosecutions. State v. Downie, 117 N.J. 450 (1990). Judicial notice means that the breathalyzer has been accepted by the courts as a reliable indicator of blood alcohol levels and therefore requires no outside proof.

In establishing the conditions of admissibility of the results of a breathalyzer reading, the responsibility for producing sufficient proof is allocated to the State and the burden of proof is by clear and convincing evidence. Romano v. Kimmelman, 96 N.J. 66 (1984)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Driving while intoxicated (DWI) in New Jersey is a strict liability offense requiring no culpable mental state. Driving a vehicle on the roads in New Jersey with a blood alcohol content (BAC) greater than .08% is a per se violation of the drinking and driving statute, N.J.S.A. 39:4-50. The State need not demonstrate a defendant's culpable state of mind to prove a violation for drunk driving. This was decided by the New Jersey Supreme Court in State v. Hammond, 118 N.J. 306 (1990).

The elements of a DWI offense in New Jersey are basic. The drunk driving statute "prescribes an offense that is demonstrated solely by a reliable breathalyzer test administered within a reasonable period of time after the defendant is stopped for drunk driving which test results in the proscribed blood alcohol level." State v. Tischio, 107 N.J. 504 (1987). Therefore, in order to provide a defense to DWI in New Jersey, you must challenge the stop (by showing an illegal stop for lack of probable cause), the breathalyzer results (by showing the machine did not have a valid certificate or that the machine was not functioning properly), the field sobriety tests, etc.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There is a charge in New Jersey for allowing another to operate a vehicle when that person is intoxicated. The allowing violation is set forth under N.J.S.A. 39:4-50(a) which provides:

(a) Except as provided in subsection (g) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood shall be subject (to the following penalties)...

This statute appears to be a strict liability offense which means it does not matter whether the person knew that the driver was intoxicated. This is the mens rea element of the statute: the state of mind of the person allowing the intoxicated individual to drive. However, this is not how the statute has been interpreted by the Appellate Division in New Jersey. There is a requirement for proof of knowledge. In State v. Skillman, 226 N.J. Super. 193 (App. Div. 1988), the court held "before a person may be convicted of permitting another person to operate a motor vehicle under the influence of intoxicating liquor or drugs, or in violation of the statutory standard for blood alcohol level, the State must produce evidence from which the trier of fact may reasonably infer, beyond a reasonable doubt, that such owner or custodian knew or reasonably should have known, of the permittee's impaired condition to drive."

This is the current standard for allowing intoxicated operation in New Jersey.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

New Jersey Police Agencies rely on the breathalyzer to provide the evidence of a suspected drunk driver's blood alcohol concentration (BAC) in the vast majority of cases. However, there will be occasions when the police will seek to obtain this vital evidence by taking a sample of the defendant's blood for testing and analysis. Typically, the extraction of a blood sample from the body of the defendant in a drunk driving case will occur in the five situations:

1) Defendant Has Been Injured: Police Blood Samples

When the police respond to the scene of a motor vehicle accident, one of their primary responsibilities is to provide immediate care and seek emergency medical treatment for those who have been injured. During the course of their investigation, the police may develop evidence that leads them to believe that one of more of the operators of the motor vehicles involved in the accident may have been under the influence of drugs or alcohol. If the level of belief rises to probable cause, the police may effect the arrest of the operator for a violation of N.J.S.A. 39:4-50(a). However, due to injuries sustained in the accident, the defendant may require immediate medical treatment at a hospital or other emergency medical facility. This fact prevents the police from having the defendant take a breath test within a reasonable period of time after operating the vehicle. Thus, when confronted with this situation, the police may request the attending medical staff to extract samples of the defendant's blood for purposes of determining the blood alcohol concentration (BAC).

2) Defendant Has Been Injured: Hospital Blood Samples

There will be times when the injuries are so severe to the defendant that the police will be unable to secure independent blood samples for their own use. Generally, this is due to the fact that the doctors or other emergency room personnel are working on the defendant in an effort to save his or her life. However, in virtually every case, the hospital will withdraw blood from the body of the defendant and perform a drug and alcohol screen in order to determine the level of alcohol in the defendant's body, and to identify any drugs which may be present. Obviously, emergency room personnel need to know this information to avoid introducing substances into the defendant's body during treatment that may adversely interact with the drugs and alcohol in the defendant's system. New Jersey law provides procedures whereby the investigating police can receive a copy of the results of the blood screen taken by the emergency medical personnel.

3) Defendant Refuses to Provide a Breath Sample

New Jersey law requires a motorist who operates a motor vehicle on any street, road, or highway to voluntarily provide breath samples for purposes of determining his or her blood alcohol concentration (BAC). See State v. Dyal 97 NJ 229 (1984). These tests are a vital component of a drunk driving prosecution. The results may constitute sufficient evidence to prove a per se violation of the drunk driving statute. Since breath samples cannot be extracted involuntarily, an individual's Breath Test Refusal frustrates the prosecutor's ability to prove a driving while intoxicated or driving under the influence charge. Law enforcement may resort to blood testing as a means of obtaining samples as there is no ability to refuse the drawing of samples. See Schmerber v. California, 384 U.S. 757 (1966). Thus, if the police have probable cause to believe that the defendant has operated a motor vehicle in violation of N.J.S.A. 39:4-50(a), they may transport him or her to a suitable medical facility and have a blood sample taken by medical personnel, against the will of the defendant, if necessary. See State v. Ravotto, 169 N.J. 227 (2001).

4) Defendants Blood Alcohol Content (BAC) is Dangerously High

In this case, the defendant has voluntarily provided a valid breath sample for the breathalyzer. Evidence of a dangerously high blood alcohol concentration from the breathalyzer may prompt the police to transport an arrested defendant to a hospital or other medical facility for additional testing, treatment, and observation. Many police departments in New Jersey develop Standard Operating Procedures which mandate blood testing at a hospital when the results of the breathalyzer are in excess of a given level. In New Jersey, the legal limit is .08%. Therefore, for example, a blood alcohol concentration in excess of .28% (almost 4 times the legal limit) may prompt the police to transport the defendant to a hospital. Levels of intoxication this high, when left untreated, can result in serious complications or death.

5) Defendants Blood Alcohol Content is Dangerously Low: Suspected Drug Use

Defendants who are arrested for drunk driving may sometimes exhibit conduct while in custody that is inconsistent with their blood alcohol content (BAC). The defendant may voluntarily submit to a breath test and show a very low reading, such as .02% or .05%, which is under the legal limit in New Jersey which is .08%. However, the defendant's mental faculties and physical coordination may be profoundly affected such that experienced police officers reasonably believe that narcotics may be involved. The defendant may have trouble standing or walking. He or she may be unable to stay awake or be incoherent. When confronted with this factual scenario, the police will transport the defendant to a hospital or other suitable medical facility for blood testing. The police may also request a urine test. These proofs may be the only evidence available to prove that the defendant operated his or her motor vehicle while under the influence of drugs or alcohol. See State v. Tamburro, 68 N.J. 414 (1975).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A disorderly persons offense (DP) in New Jersey is a petty offense that is handled in municipal court. These types of offenses include simple assault and harassment. In the recent case of Housing and Redev. Auth. of Twp. of Franklin v. Miller, A-2463-06, the court held that a tenant may be evicted from federally subsidized public housing upon conviction for a disorderly persons offense. The court held that a statute allowing eviction for "criminal activity" (known as the one-strike law) should be read broadly, consistent with its purpose of making public housing safe. Therefore, Judge Donald Coburn's panel found no intention by Congress to exclude petty offenses from the "criminal activity" that justifies eviction. A Somerset County Superior Court judge found that the housing authority was within its rights to terminate the lease under 42 U.S.C.A. 1437d(1)(6), which requires that leases of federally subsidized housing provide that "any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug related criminal activity on or off such premises, engaged in by a public household tenant, any member of the person's household, or any guest or other person under the tenant's control, shall be good cause for termination of the tenancy." On appeal, the judges agreed that a DP offense was included in criminal activity sufficient to warrant eviction.

• Email This
• Print
• Comments
• Trackbacks
• Share Link