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

The working definition of "under the influence of alcohol" as related by the case law has not changed much in the past 100 years. In State v. Emery, the New Jersey Supreme Court quoted with approval a definition that dated back to at least 1917. The court held "N.J.S.A. 39:4-50 penalizes a person who drives while under the influence of intoxicating liquor. Although prosecutions pursuant to these 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).

So, at one extreme, it is not necessary that the defendant be intoxicated in the sense of being sodden with alcohol in order to be under the influence. At the other extreme, the condition of being under the influence must mean something more than having partaken of a single drink, even though physiologically, the smallest amount of alcohol has some slight effect or influence on the drinker. Considering these issues, it appears that the Legislature intended to strike a balance between these two extremes when using the term "under the influence". The concept of being "under the influence of alcohol" is a general condition as a result of which a motor vehicle operator is so affected in judgment and control that it is improper for him to drive. Notice that the standard is improper, not unsafe, although proof of erratic driving is generally admissible as evidence of being under the influence. The proper standard of proof is proof of an impairment of either mental faculties or physical coordination.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

Many police vehicles have computers now known as mobile data terminals (MDTs). These laptop sized computers permit the officer to perform rapid searches of law enforcement databases. In addition to information concerning active criminal and traffic warrants, the MDT also provides basic information about motorists. By typing in the license plate number, the MDT provides information concerning vehicle registration and whether the owner of the vehicle is legally licensed to drive in New Jersey.

The question arises whether a MDT report of a problem with the vehicle registration or the owner's driver's license constitutes a sufficient legal justification to effect a motor vehicle stop. The New Jersey Supreme Court answered this question in State v. Donis, 157 N.J. 44 (1998). The court held that motorists have no expectation of privacy in their license plates or associated numbers. The plates are always located on the outside of the vehicle and must be easily viewable. On the other hand, there is an expectation of privacy with regard to information associated with the license plate number. Data such as the home address, social security number, and name of the owner of the vehicle are protected by both state and federal law.

In order to balance these competing interests, the New Jersey Supreme Court in Donis created a two step process to be performed by law enforcement. Police are permitted to randomly enter license plates numbers into the MDT. The system will report back basic information regarding the registration status of the vehicle, the driver's license status of the owner, and whether the vehicle has been reported lost or stolen. Other personal information about the owner may not be displayed in the first step. If the data received during the first step warrants further investigation (because the vehicle is not registered or the owner's license is suspended), the police are permitted to access personal information through the MDT. This may include the owner's name and address, social security number, and criminal record. The Supreme Court has ordered that when the police do not receive evidence of problems with the vehicle or the driver, they may not proceed to step two and access personal information.

• Print
• Comments
• Trackbacks

There were arguments at the New Jersey Supreme Court this past Monday over the state's new drunk driving test, the Alcotest. The state Supreme Court judges must put their stamp of approval on the machine for it to go live statewide. For them to do so, they must determine that it is scientifically reliable enough to be used in DWI prosecutions in New Jersey. The Alcotest 7110, which would replace the Breathalyzer which has been in use since the 1950s, has been used in 17 counties since early 2006. The New Jersey Supreme Court has stayed sentencing pending its review of the machine's reliability. As many as 7,800 defendants in DWI cases based on the Alcotest are awaiting the Court's ruling on the machine's reliability. In November, Special Master Michael Patrick King concluded, based on a voluminous fact-finding record, that the Alcotest is scientifically reliable for evidentiary purposes, subject to safeguards meant to compensate for software flaws. It was his second report recommending implementation, and Monday was the Court's second hearing on whether to adopt King's recommendation.

There are experts that contend that errors in Alcotest readings are still possible due to software and mechanical issues. The Alcotest performs two tests on each breath sample, using electrochemical and infrared technology, but the electrochemical test tends to become less accurate over time due to fuel-cell depletion. The device is programmed to compensate by using the infrared value to compute the electrochemical result. King recommended that the device be calibrated for accuracy and its fuel cell replaced, if necessary, every six months--twice as often as the annual tune-up he originally suggested.

It will be interesting to see how the Court finally rules on this crucial issue in New Jersey DWI law.

• Print
• Comments
• Trackbacks

As I said in my previous article, New Jersey has yet to drop the inadvertence requirement from the plain view analysis as was done by the United States Supreme Court in Horton v. California, 496 U.S. 128 (1990). This issue was first presented to the Appellate Division in State v. Damplias, 282 N.J. Super 471 (1995). However, the court declined to rule on whether the inadvertence requirement (the second prong of the test) is still an essential element under Article I, Paragraph 7 of the New Jersey Constitution. The court simply noted that the test for inadvertence has two prongs: 1) Did the police know in advance where the evidence was located? 2) Did the police intend beforehand to seize the evidence? If the answer to both questions is yes, then the discovery of the evidence is not inadvertent and the plain view exception does not apply. However, if the answer to the first prong is yes and the answer to the second prong is no, the the inadvertence requirement is satisfied. Seven years later, the New Jersey Supreme Court had an opportunity to clarify the issue but declined to do so. In State v. Johnson, 171 N.J. 192 (2002), the Court avoided the question and declined to rule on whether the inadvertence prong is still a requirement under the State Constitution. The Court simply held that, to the extent that the inadvertence requirement still exists in the wake of the Horton decision, it was satisfied in the Johnson case. Accordingly, it appears that the inadvertence prong is still part of the analysis in New Jersey with regard to the plain view exception to the warrant requirement.  

• Print
• Comments
• Trackbacks

In a drinking and driving prosecution, almost all evidence discovered during a lawful, warrantless search of a motor vehicle is legally admissible against the defendant under the plain view exception to the warrant requirement. The plain view doctrine was established by the United States Supreme Court in the case of Coolidge v. New Hampshire, 403 U.S. 443 (1971). The original plain view exception required proof of three elements: 1) the police officer had to be lawfully in the viewing area. Basically, the officer must have a legal right to be in the place from which he or she makes the observations. 2) the officer was required to discover the evidence inadvertently, meaning that the officer did not know where the evidence was in advance. 3) the criminal nature of the item must be immediately apparent.

The original test has been modified by the United States Supreme Court in subsequent decisions. In Texas v. Brown, the immediately apparent requirement was modified as the police must have probable cause to associate the item seen in plain view with criminal activity. Texas v. Brown, 460 U.S. 730 (1983). In 1990, the Court again modifed the test as the inadvertent aspect of the discovery of evidence was not a necessary condition. Basically, they did away with the second prong of the test.

As modified, the New Jersey Supreme Court has accepted the three requirements governing the plain view exception as described in Brown. As modified, the plain view exception in New Jersey will require proof that:

1) at the time of the viewing of the evidence, the officer was in a location where he or she had a right to be.

2) the officer discovered the evidence inadvertently, meaning that he or she did not know in advance where the evidence was located and did not intend beforehand to seize it; and

3) there was probable cause to associate the items seen in plain view with the evidence of criminal activity.

Interestingly enough, New Jersey has yet to drop the inadvertent requirement from plain view analysis as was done by the United States Supreme Court in Horton v. California, 496 U.S. 128 (1990).

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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).

• Print
• Comments
• Trackbacks

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."

• Print
• Comments
• Trackbacks

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).

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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).

• Print
• Comments
• Trackbacks

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.'"

• Print
• Comments
• Trackbacks

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."

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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."

• Print
• Comments
• Trackbacks

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."

• Print
• Comments
• Trackbacks

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"

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

"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.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

"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.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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).

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments (1)
• Trackbacks

We are frequently asked about the constitutionality (legality) of roadblocks which result in DWI charges in New Jersey. The constitutionality of police roadblocks was addressed in the 1979 United States Supreme Court case of Delaware v. Prouse, 440 U.S. 648 (1979). In Prouse, the Supreme Court held that it was unconstitutional to stop and detain a driver absent articulable suspicion that a motorist is unlicensed, that the automobile is unregistered, or the vehicle or an occupant is otherwise subject to seizure for violation of law (e.g. motor vehicle violation, warrant, etc.). The issue was, however, revisited under New Jersey's Constitution in State v. Kirk, 202 N.J. Super 28 (App.Div.1985). In Kirk, the court held that temporary road blocks set up by New Jersey police were unconstitutional absent safeguards such as identified procedures for ensuring supervisory control of checkpoints and warnings to motorists of the anticipated roadblock. The case of State v. Moskal 246 N.J. Super 12 (1991) displays how the required procedures must operate if the roadblock is to be valid. In Moskal, the court concluded that a sobriety checkpoint (i.e. a roadblock) is valid provided the location of the checkpoint is appropriate based on historical arrest rates at the location, public safety and awareness would be fostered by the checkpoint, there is participation in command and supervision, and notice of the checkpoint is published to provide motorist with notice.

Basically, therefore, roadblocks are constitutional and valid in New Jersey if these procedural safeguards are met by law enforcement officers.

• Print
• Comments
• Trackbacks

The Horizontal Gaze Nystagmus (HGN) Test is a fairly new field sobriety test in New Jersey drinking and driving cases. This is one of the field sobriety tests law enforcement officers use when conducting DWI traffic stops. If the breathalyzer or blood test results are not conclusive, the State will attempt to use these field sobriety results to prove intoxication. In State v. Maida 332 NJ Super 564 (Law Div. 2000), the court held that HGN testing is generally accepted in the relevant scientific community. However, absent a similar determination by an Appellate Court or the New Jersey Supreme Court, the trial courts in this State are not at liberty to admit evidence of newly-devised scientific technology unless the general acceptance thereof is demonstrated by expert testimony, authoritative scientific and legal writings or judicial opinions. This issue went to the Appellate Division in the case of State v. Doriguzzi 334 NJ Super 530 (2000) where the Appellate Division declined to take judicial notice of the HGN tests. The court held that HGN testing is scientific in nature and must be supported by expert testimony.

• Print
• Comments
• Trackbacks

Police are generally required to conduct Field Sobriety Tests before issuing a summons for driving while intoxicated or driving under the influence. These physical and psychological tests are intended to provide the police with information necessary to determine whether an individual is under the influence of alcohol or drugs. The tests are also necessary because a police officer must possess probable cause to make an arrest and unless he has portable breath test equipment in his vehicle, field sobriety tests (also referred to as psycho-physical testing) are ordinarily the only basis for establishing probable cause for an arrest. Additionally, the tests provide evidence which the police can rely upon in attempting to prove a New Jersey DWI, DUI or Refusal case where blood alcohol concentration cannot be established through blood or breath tests.

There are many issues which may be raised with respect to administration and interpretation of field sobriety tests. Indeed, many times police officers fail to administer the tests properly thereby destroying the value of the tests. In other instances, the test results are misinterpreted or exaggerated, and this can also be brought out during the course of a case. If the weight of the field sobriety tests can be eliminated or significantly reduced, then the prosecutor may be unable to satisfy his burden of establishing probable cause for the drunk driving arrest and any DWI, DUI or Refusal charge issued.

The types of field sobriety tests administered in a given case vary, but the pool of tests which are utilized by police officers typically involves the following:

1. The Horizontal Gaze Nystagmus Test: this is a test wherein police attempt to determine whether probable cause exists to make an arrest based on how smoothly an individual's eyes are tracking. For a more detailed discussion concerning the limited use of this test, readers are referred to New Jersey's Appellate Division decision in State v. Doriguzzi, 334 N.J.Super. 530 (App.Div.2000).

2. Head Tilt Test

3. Finger to Nose Test

3. The One Leg Balance Test

4. Heal to Toe Test

5. Reciting the ABCs

6. Counting

The results of the field sobriety tests, as well as other circumstantial evidence, is recorded in the Police Report and Drinking and Driving Report contained in the arrest records (i.e. the discovery).

• Print
• Comments
• Trackbacks

A recent article in the New Jersey Law Journal (dated November 19, 2007) was titled "Alcotest Scientifically Reliable, Says Special Master After Second Review". This ruling could have a significant impact on DWI Litigation in New Jersey. A New Jersey Supreme Court fact finder considered software tests and testimony and found that the Alcotest 7110 is scientifically reliable enought to put into use. In a report, Special Master Michael Patrick King said "the Alcotest is scientifically reliable, both as to software and hardware, in reporting alcohol breath testing results for evidentiary purposes." This report will be subject to oral argument before the New Jersey Supreme Court on January 7th in State v. Chun, the case that will determine the admissibility of Alcotest readings in drinking and driving cases. The Alcotest has been in use in 17 counties since early last year, though the Court has stayed the sentencing for these convictions based on Alcotest results. King reasserted his conclusion that the Alcotest is much more reliable than the Breathalyzer test in use since the 1950s. "The Alcotest essentially functions independently of operator influence, unlike the breathalyzer, which is very dependent on the operator and produces no objective and permanent record of test results. The Alcotest is also much more precise."

The next step will be oral argument on January 7th in State v. Chun and we will see how the DWI landscape in New Jersey changes as a result of this upcoming New Jersey Supreme Court decision.

• Print
• Comments
• Trackbacks