By A. Bailey (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsThe act of flashing one’s headlights or high beams at another driver can have many different meanings, one of which is to warn that a speed trap is ahead. Some states have enacted laws prohibiting this practice, ostensibly for public safety. New Jersey’s statute, for example, prohibits flashing headlights that are “projected into the eyes of the oncoming driver.” These laws tend to discourage communication among drivers about speed traps, and they give police a reason to pull people over. These two purposes came into direct conflict in a recent DWI case in New Mexico. A woman successfully argued that flashing her high beams at an oncoming car, which turned out to be a police vehicle, was protected free speech, and that the officer therefore lacked probable cause to pull her over.

The New Mexico woman was pulled over at around 10:00 p.m. on January 25, 2014. She stated that she thought the oncoming car had its high beams on, so she quickly flashed her high beams back and honked her car horn. The other car turned around, activated its emergency lights, and pulled her over. She was charged with violating a high-beam ordinance as well as aggravated DWI. The judge granted her motion to suppress evidence of her field sobriety test and chemical test results, finding that she had engaged in speech protected by the First Amendment. This resulted in the dismissal of the entire case. She has also filed a lawsuit against the city and the officer for civil rights violations.

Drivers in several states have successfully challenged high-beam citations on free-speech grounds. A federal judge in Missouri granted a permanent injunction in April 2014 that prohibited the town of Ellisville from enforcing a law against flashing headlights to warn of speed traps, finding that the plaintiff was likely to prevail on his free speech claims. An Oregon judge ruled that high-beam charges violated a driver’s free-speech rights under the state constitution, and a Florida judge issued a similar ruling in May 2012 applying the U.S. Constitution. Continue reading →

Adriaen Brouwer (circa 1605/1606–1638) [Public domain], via Wikimedia CommonsThe arrest of a man found sleeping in his car on a New Jersey road for alleged driving while intoxicated (DWI) raises a rather obvious question:  can police arrest someone for DWI if they did not actually see the person driving? New Jersey’s DWI statute, which prohibits “operat[ing] a vehicle” while intoxicated or under the influence of illegal drugs, does not actually require an arresting officer, or anyone else, to witness a suspect driving. It does, however, require other evidence to establish that a person had been driving, or that he or she intended to drive and was about to do so, while under the influence of alcohol or drugs.

Police in North Plainfield, New Jersey reportedly responded to a report of someone sleeping in his car early one morning in late September 2014. Officers found the car parked on the side of a road. They claimed that they had to shout to wake the man up, and that he told them he thought he was in a parking lot. Two children were also reportedly in the car with the man. His blood alcohol content (BAC) was allegedly 0.13 percent, which resulted in charges of both DWI and child endangerment. The latter charge depends on the state’s ability to prove the former. Since no witnesses have claimed to have seen the man driving, this will depend on whether the state can prove beyond a reasonable doubt, based on the circumstances, that the man had operated the vehicle.

Mr. Uquillas-Tapia has several defenses to this situation.

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By Fernost (Own work) [Public domain], via Wikimedia CommonsPolice patrol cars in New Jersey must be equipped with video cameras under a new law passed by the New Jersey Legislature and signed by the Governor in September 2014. The law takes effect during a time when police accountability is a topic of national interest. Video cameras, either worn by the police officer or mounted in the police vehicle, are often proposed as a means of curbing civil rights abuses. The original sponsor of the bill, Assemblyman Paul Moriarty, was the subject of a traffic stop and an arrest for alleged DWI in 2012. Video footage from a camera in the officer’s car differed significantly from the officer’s report of the stop and ultimately exonerated Moriarty.

Moriarty was arrested on July 31, 2012 in Washington Township, New Jersey after a traffic stop. The officer who pulled Moriarty over claimed that Moriarty cut him off after making an illegal lane change. Moriarty refused to submit to a breath test, resulting in a criminal charge of refusal as well as DWI. Video of the stop, taken from a dashboard camera in the officer’s vehicle, reportedly contradicted the officer’s account of the stop. The prosecutor dismissed the charges against Moriarty in May 2013 after concluding that evidence obtained from the stop would be inadmissible.

The officer faced multiple criminal charges in the aftermath of the arrest, including perjury, official misconduct, and tampering with public records. Moriarty filed at least two civil suits in connection with the incident: a defamation suit against a car dealership for allegedly false statements by employees that led to the traffic stop, and a civil rights claim against the police department and the arresting officer. Being a New Jersey Assemblyman, Moriarty also took steps to make the type of evidence that exonerated him available to every DWI defendant. Continue reading →

DUIDLA President SealA new national organization for DWI attorneys, the DUI Defense Lawyers’ Association (DUIDLA), has launched, and I am honored to announce that I will serve as the organization’s first president. Along with five other officers, I have the privilege of helping to guide this organization at its birth as we shape it into a national resource providing support and education to DWI lawyers.

DUIDLA is a non-profit bar association, currently headquartered with us in New Jersey. It is in the process of obtaining 501(c)(6) tax-exempt status. The initial group of 15 Directors will serve three-year terms. The other officers and I will each serve for two years. The Directors will meet semi-annually, with the meetings open to all DUIDLA members. Starting next summer, these meetings will take place in conjunction with seminars hosted by DUIDLA.

Our website will soon have an “Education” tab that will allow seminar and training providers to post information about upcoming events. We will use the website, along with social media sites like Facebook and Twitter, to keep our members and the public informed about events and activities. One of our top goals is to provide top-notch training for DWI lawyers at all experience levels all over the country. Continue reading →

By Alvesgaspar (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia CommonsThe criminal offense of driving while intoxicated (DWI) is most often associated with alcohol, hence the term “drunk driving.” It is also an offense under New Jersey’s DWI statute to operate a motor vehicle while under the influence of certain other drugs. While the statute determines the severity of a DWI offense involving alcohol based on several levels of blood alcohol content (BAC), it provides no similar guidance for other drugs. Courts have generally held that expert testimony is required to prove intoxication by certain types of drugs.

New Jersey’s DWI statute defines the offense, in part, as driving “while under the influence of intoxicating liquor, narcotic, hallucinogenic, or habit-producing drug,” or with a BAC of 0.08% or higher. The statute creates two tiers of alcohol intoxication for first offenders. The first tier includes people with a BAC of at least 0.08 percent but less than 0.10 percent, and the second tier includes people with a BAC of 0.10 percent or higher. The second tier also includes anyone under the influence of a “narcotic, hallucinogenic, or habit-producing drug,” regardless of the amount.

Breath tests are not effective at measuring the amount of drugs, as covered by the DWI statute, in a person’s blood stream. Police generally rely on blood or urine tests. Under New Jersey’s implied consent statute, anyone who drives on a public street or road within the state consents to giving samples of breath, blood, or urine for the purposes of enforcing the DWI statute. New Jersey courts have held that chemical test results, expert testimony, and layperson testimony are all relevant to the question of whether a person is “intoxicated” due to drugs. Continue reading →

By TVR (Own work) [CC-BY-SA-2.5 (http://creativecommons.org/licenses/by-sa/2.5)], via Wikimedia CommonsFor more than eight years, our law firm has been principally involved in challenges to the Alcotest device, which the state uses to measure blood alcohol content (BAC) in DWI cases. We represented the lead defendant in a 2008 case, State v. Chun, in which the New Jersey Supreme Court established strict guidelines for the admissibility of Alcotest results and required multiple changes to the device’s software. Unfortunately, New Jersey courts have since rolled back those protections, starting with a 2011 ruling in State v. Holland. We went back to court in the Chun case in 2013 to challenge the state’s failure to do what the Court ordered in 2008. While the court ruled that the state may continue using the Alcotest device, the state will have to find an alternative soon. The German company Draeger, which manufactures the Alcotest, will no longer offer a warranty for the device after 2016.

The state continues to use the Alcotest 7110 MKIII-C device, with the New Jersey State Police offering operator certification and re-certification training for state, county, and local law enforcement. A person whose BAC is 0.08 percent or higher is presumed to be intoxicated under state law. BAC evidence is not necessarily required to prove DWI in court, but without it, prosecutors must rely on physical observations of alleged intoxication. While witness testimony is subject to cross-examination and challenge on a wide range of issues, a defendant typically may only challenge BAC evidence based on the device’s maintenance, calibration, and proper functioning. The Alcotest device has raised many questions in these areas.

In Chun, we challenged the scientific reliability of the Alcotest device, which uses two methods to measure alcohol concentration in a breath sample. The court’s decision describes how the device captures the breath sample in a chamber, where it uses infrared energy to calculate the alcohol content based on energy absorption. The second method takes part of the breath sample from the infrared chamber and applies voltage to oxidize the alcohol. This creates electricity, which the device measures to determine the alcohol amount. The device requires careful calibration, with a period of at least 20 minutes between calibration and use. Continue reading →

raffaella_biscuso [Public domain, CC0 1.0 (http://creativecommons.org/publicdomain/zero/1.0/)], via OpenclipartThe Appellate Division of the New Jersey Superior Court ruled in State v. Lawrence that a defendant should not have received an enhanced sentence for driving while intoxicated (DWI), even though he had two prior convictions. New Jersey law increases the penalties for second, third, and subsequent DWI convictions, but there are exceptions. The defendant relied on two facts in support of his argument against enhanced penalties. He was not represented by counsel during his first DWI case, and both his first and second DWI cases occurred more than 10 years before the current case. The Appellate Division found that, under a New Jersey statute and a New Jersey Supreme Court decision, these facts required the trial court to sentence the defendant as a first offender.

The defendant pleaded guilty to DWI before a municipal judge, after he admitted to drinking “two alcoholic beverages and two beers” before driving. The defendant had two prior DWI convictions from 1990 and 1994. Although this was his third offense, the judge sentenced him as a second offender on August 30, 2012.

New Jersey’s DWI statute imposes enhanced penalties for a second, third, and subsequent convictions. It makes exceptions, however, if enough time passes between convictions. The DWI statute, in § 39:4-50(a)(3), states that if the third offense takes place more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes. Since about 18 years elapsed between the defendant’s second and third offenses, the court applied the sentencing guidelines for a second offense. Continue reading →

David Wright [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia CommonsNew Jersey law deals very seriously with the traffic offense of driving while intoxicated (DWI). An arrest for DWI can result in a license suspension, if the State can prove the offense in court beyond a reasonable doubt. However, a person does not even need to be driving a vehicle, nor do they need to be intoxicated, to be charged with DWI under New Jersey law. The traffic offense of DWI also includes permitting another person to operate a vehicle while under the influence of drugs or alcohol. The New Jersey Supreme Court has considered cases involving this part of the statute several times and has consistently held that it is a key component of the state’s objective of preventing and punishing drunk driving.

Under New Jersey law, the offense of DWI is defined primarily as “operat[ing] a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or…with a blood alcohol concentration of 0.08% or more.” The statute also includes “permit[ting] another person [who meets the above definition] to operate a motor vehicle.” The New Jersey Supreme Court discussed this part of the statute in State v. Hessen in 1996, noting that “a person who allows an intoxicated person to drive” is “as blameworthy as the drunk driver.” State v. Kashi held that the “permitting” portion of the statute is not a separate offense from DWI, but rather an “alternative evidential method” of proving the offense of DWI.

Civil liability for damages caused by a drunk driver are fairly well-known, such as if a social host or bar serves alcohol to a visibly intoxicated person. The New Jersey Supreme Court affirmed this view in the 1984 case Kelly v. Gwinnell. Imposing quasi-criminal liability, however, requires a higher standard of proof than in a civil case. The statute does not make it clear what constitutes “permitting” an intoxicated person to operate a vehicle. In theory, anyone who comes into contact with an intoxicated person could inquire as to whether they intend to drive, but it would be unwieldy and unreasonably to impose quasi-criminal liability on all of those people. Several New Jersey courts have addressed the elements that a prosecutor must prove beyond a reasonable doubt. Continue reading →

geralt [Public domain, CC0 1.0 (http://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayA recent decision by the Superior Court of New Jersey, State v. O’Neill, highlights two important features of New Jersey driving while intoxicated (DWI) laws. First, the court held that, under New Jersey’s implied consent law, any response other than an unambiguous “yes” to an officer’s request to submit to breath testing may be deemed a refusal. Even verbal consent by a person to breath testing, as long as her mother remained with her, could be considered “refusal” under this interpretation of the law. Second, state law requires officers to read a statement regarding implied consent and refusal, and as long as an officer reads the statement prior to taking a breath sample, the state has fulfilled its duty under the law. This applies even if the statement omits information any defendant might reasonably find useful.

The defendant was stopped by a police officer in Bernard Township, New Jersey on January 19, 2013, allegedly for speeding. The officer determined that she had consumed alcohol before driving, although the court does not say how. After placing her under arrest and transporting her to police headquarters, the officer read the New Jersey Attorney General’s Standard Statement for Motor Vehicle Operators (the “Standard Statement”) aloud to her. The defendant responded that she would agree to testing if her mother could be with her. Because this response was “conditional,” rather than “yes,” the officer read the final section of the Standard Statement, which states that she could be charged with refusal for any answer “other than ‘yes.’” The defendant replied “no.”

The officer charged the defendant with DWI, refusal to submit to breath testing, speeding, and failing to produce documentation. The defendant filed a motion to dismiss the refusal charge in the municipal court, arguing that the state did not fulfill its statutory duties because it failed to advise her of the minimum penalties if she were to be convicted of refusal. The municipal court denied her motion. The defendant pleaded guilty to DWI, and entered a conditional plea of guilty to refusal, reserving her right to appeal the dismissal motion. The Law Division denied her appeal, and the case went before the Superior Court. Continue reading →

By vishwin60 (Own work) [Public domain, GFDL (http://www.gnu.org/copyleft/fdl.html), CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0/) or FAL], via Wikimedia CommonsThe New Jersey Superior Court ruled that a defendant can be required to use an ignition interlock device as a penalty for refusal to submit to a breath test, even though the officer who read the required warning about refusal did not mention any penalties. The defendant in State v. McGrath argued that the officer violated his rights by failing to include the possible requirement of an ignition interlock device if he refused a breath test, and that the court should therefore dismiss the charge. He was acquitted of DWI, but convicted of refusal. On appeal, the Superior Court ruled that the lack of specific warning about an ignition interlock device did not preclude it as a penalty.

A police patrolman issued tickets to the defendant on August 20, 2011 for DWI and refusal to submit to a chemical breath test. He testified in municipal court that he arrested the defendant and took him to the police station, where he read the “New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle” aloud to the defendant. State law requires that an officer read this notice (PDF file) before asking a DWI suspect to submit to chemical testing. The most recent version of the notice at the time was finalized on April 26, 2004. It did not mention ignition interlock as a mandatory penalty for refusal, which the state enacted in 2010. The defendant refused to submit to testing.

The defendant moved to dismiss the refusal charge because of the incomplete notice. The municipal court denied the motion. It found him guilty of refusal, but acquitted him on the DWI charge. Because he had three prior DWI convictions, the court deemed the defendant a third-or-subsequent offender. His sentence included a ten-year license suspension and installation of an ignition interlock for a period lasting one year after restoration of his driving privileges. The defendant raised the same argument about the incomplete warning to the Law Division, which affirmed the refusal conviction but reversed the ignition interlock requirement. Continue reading →