HolidaysThe holidays are a time of happiness and celebration for many people, but law enforcement officials are aware of the risks to public safety potentially posed by too much celebration. Police departments throughout New Jersey have announced increased enforcement of state laws regarding driving while intoxicated (DWI) during the holiday season. They have many means of doing this at their disposal, from traffic stops based on a reasonable suspicion that a person might be impaired by alcohol, to roadside checkpoints intended to check drivers for DWI. While the Fourth Amendment to the U.S. Constitution limits the ability of police to stop and search people, and those limits have just as much force during the holidays as at any other time of the year, courts have allowed police to operate DWI checkpoints subject to certain requirements. We encourage everyone to enjoy the holidays and be safe, and to know their rights under state and federal laws.

New Jersey’s DWI statute makes it a motor vehicle offense to operate a vehicle “while under the influence of intoxicating liquor,” or with a blood alcohol concentration (BAC) of at least 0.08 percent. This means that police can arrest someone on suspicion of DWI, and prosecutors can pursue charges, even without evidence of a BAC above the legal limit. To do so, they must present other types of evidence, such as testimony from an officer who observed a defendant at or near the time of their arrest and can describe behavior, appearance, or other conditions indicative of intoxication.

The holiday season often features parties in bars and other public venues and in people’s homes. Police across the state are participating in the two-week “Drive Sober or Get Pulled Over 2016 Year End Holiday Crackdown,” a program supported by the U.S. National Highway Traffic Safety Administration (NHTSA) and the New Jersey Division of Highway Traffic Safety (DHTS). Local law enforcement agencies may obtain grants from the DHTS to assist in implementing the campaign, which includes “saturation patrols” by police and increased use of roadside DWI checkpoints.

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Music-breathNew Jersey prosecutors often rely on evidence of a defendant’s blood alcohol concentration (BAC) to prove guilt in driving while intoxicated (DWI) cases. Police officers typically determine a person’s BAC by testing a breath sample. All police departments in this state use a device known as the Alcotest for this purpose. The Alcotest is prone to errors, and it requires continual maintenance. We were involved in a New Jersey Supreme Court case, State v. Chun, that established specific procedures police must follow to maintain the Alcotest device. Failure to follow these procedures ought to result in suppression of the breath testing results. A pending lawsuit in a New Jersey federal court is calling thousands of Alcotest results into question due to allegedly fraudulent records. The plaintiff in Ortiz v. New Jersey State Police claims that thousands of DWI defendants throughout the state would have challenged the BAC evidence in their cases, had they known about the alleged failure to follow the procedures established by Chun.

Prosecutors can establish the required elements of DWI without BAC evidence, but state law gives them a compelling reason to prefer such evidence. A defendant with BAC of 0.08 percent or higher—commonly known as the “legal limit”—is presumed to be impaired within the meaning of the DWI statute. BAC of 0.10 percent or higher can result in even greater penalties. Anyone driving a vehicle on public roads in New Jersey, according to state law, has given implied consent to provide a breath sample on suspicion of DWI, and refusal to do so is a separate motor vehicle offense.

Devices that purportedly use a breath sample to measure BAC first appeared in the mid-20th century. The Alcotest 7110 MKIII-C became the device for New Jersey law enforcement during the early 2000s. It uses two methods to measure BAC: infrared spectroscopy and electrochemical cell technology. Regular maintenance and careful calibration are what the State says make the process reliable. The purpose of the Chun decision was to attempt to ensure that this happens.
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scroll certificateIn criminal prosecutions, the state has the burden of proving a defendant’s guilt beyond a reasonable doubt. This is an intentionally difficult burden, designed to protect the rights described in the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution. Although driving while intoxicated (DWI) is a motor vehicle offense in New Jersey, rather than a criminal one, most of these protections apply in DWI cases. Defendants can challenge the admissibility or sufficiency of the state’s evidence before or during trial. They can also challenge evidence on appeal or in a motion for post-conviction relief (PCR), especially if new information becomes available. Recent allegations of records tampering against an officer of the New Jersey State Police may create ample opportunities for such challenges, since the allegedly fraudulent records potentially affect 20,000 DWI cases statewide.

The New Jersey Rules of Evidence govern the use of evidence in court proceedings. One of the most important rules involves statements made outside the presence of a judge or jury, which are known as “hearsay.” A statement is considered inadmissible hearsay when it is “offered in evidence to prove the truth of the matter asserted.” In plain English, a police officer can testify about their own personal observations of the defendant but not about statements made by other people. Public records kept in the ordinary course of government business, such as reports generated by an Alcotest device, are generally excepted from the hearsay rule. This exception, however, is subject to some exceptions of its own.

A 2007 decision by the New Jersey Appellate Division, State v. Kent, addressed the use of documentary evidence in a DWI case. The court held that a chemist report describing the results of a blood test is inadmissible at trial if the defendant does not have the opportunity to cross-examine the individual who prepared the report. The case drew on the Supreme Court’s 2004 ruling in Crawford v. Washington, which addressed the admissibility of written statements or reports that are deemed “testimonial” and therefore subject to the hearsay exclusion.

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A defendant in a New Jersey driving while intoxicated (DWI) case can appeal a negative outcome, but appellate courts are limited in their authority to review some lower court actions. A recent decision by the New Jersey Superior Court, Appellate Division illustrates two important issues in a DWI defense. The defendant in State v. Hernandez challenged the evidence that she was intoxicated, arguing that police had her blood drawn without a warrant in violation of her Fourth Amendment rights. She also, at one point in the appeal, challenged the trial court’s findings regarding the credibility of her testimony as compared to several police officers’ testimony. Limitations on the appellate court’s ability to review factual findings, as well as the timeliness of the defendant’s objections, largely determined the court’s ruling.

The “exigent circumstances” exception to the Fourth Amendment’s warrant requirement allows police to conduct a warrantless search if they reasonably believe that there is a substantial risk of the loss or destruction of evidence. Police have used this exception to justify drawing blood from a DWI suspect without a warrant. In 2013, however, the U.S. Supreme Court ruled in Missouri v. McNeely that the human body’s natural process of metabolizing alcohol is not an “exigent circumstance” justifying a warrantless blood draw. Police can still establish legitimate justifications for warrantless blood draws, but McNeely set a much higher standard than before.

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roadNew Jersey’s driving while intoxicated (DWI) laws allow prosecutors to prove impairment by alcohol in several ways. Evidence of blood alcohol content (BAC), determined by a breath, blood, or urine test, is a well-known method. Prosecutors may also offer witness testimony, particularly testimony by an arresting officer and others who observed the defendant at the time of the arrest. The New Jersey Supreme Court has held that no particular expertise is required to form an opinion, which would be admissible in court, that a person is intoxicated based on observation of the person. The New Jersey Appellate Division recently ruled in State v. Colabella that a BAC below the legal limit for DWI did not supersede officer testimony regarding a defendant’s intoxication in a DWI case. Even though the person’s BAC was not high enough to create a presumption of impairment, the court accepted other evidence.

A BAC of 0.08 percent creates a presumption of intoxication under New Jersey law. This BAC amount is commonly known as the “legal limit” for DWI, and a DWI offense based on BAC evidence is often known as “per se DWI.” New Jersey law makes it a separate offense to refuse to submit to breath testing. This indicates how important the state considers BAC evidence, but it is not absolutely required for a DWI conviction. The DWI statute defines the offense as driving “while under the influence of intoxicating liquor” or other substances, or with a BAC of 0.08 or higher. Prosecutors can introduce evidence that someone was “under the influence” through officer testimony about how the defendant was driving, their demeanor and appearance, the odor of alcohol, and their performance on field sobriety tests (FSTs).

The defendant in Colabella challenged a DWI conviction when BAC test results showed a BAC below the legal limit. According to the Appellate Division’s opinion, an officer pulled the defendant over for an illegal turn and an expired inspection sticker. The officer testified at trial that he detected a “strong odor of alcohol” coming from the vehicle. He also stated that the defendant had “slow and slurred” speech and “blood shot and watery” eyes, all indicators of alcohol impairment. The defendant reportedly admitted to consuming one beer and some ibuprofen.

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judgeDefendants in New Jersey criminal cases may be eligible to participate in a Pretrial Intervention program (PTI), which allows them an opportunity to avoid prosecution by focusing on rehabilitation. New Jersey law classifies driving while intoxicated (DWI) as a motor vehicle offense, rather than a criminal offense, although driving while one’s license is suspended (DWLS) due to DWI can lead to a criminal charge in certain circumstances. The New Jersey Appellate Division recently heard an appeal filed by a prosecutor’s office in a criminal DWLS case, State v. Rizzitello. The prosecutor alleged that the trial court wrongfully admitted the defendant into PTI over the prosecutor’s objection. Citing a 2015 New Jersey Supreme Court decision, State v. Roseman, which established guidelines for reviewing a prosecutor’s rejection of a PTI application, the Appellate Division reversed the lower court.

The general standards for PTI programs are established by the New Jersey Code of Criminal Procedure and Rule 3:28 of the New Jersey Rules of Court. Rule 3:28 includes a list of guidelines setting forth the purposes of the program, the factors prosecutors should consider in deciding whether to admit an applicant, and various administrative procedures. PTI programs, according to the guidelines, should be available when rehabilitation could “reasonably be expected to deter future criminal behavior.” Guideline 3(i) provides examples of offenses that are likely to render a defendant ineligible for PTI. Defendants must apply for PTI within 28 days of their indictment, and prosecutors must make a decision within 25 days of receiving an application.

The New Jersey Supreme Court held in Roseman that a trial or appellate court may overrule a prosecutor’s rejection of a defendant’s PTI application if it finds that the rejection was “a patent and gross abuse of discretion” by the prosecutor. The court also noted, based in part on Guideline 3(i), that a presumption against PTI exists for “crimes that are, by their very nature, serious or heinous.” A defendant must show “something extraordinary or unusual” about their background in order to overcome this presumption. The Roseman court cited an earlier decision, 2008’s State v. Watkins, which gave examples of “serious or heinous” crimes, including violent crimes, breaches of the public trust, and “non-drug addicted individuals who sell Schedule I and II narcotics for profit.”

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alcoholA conviction for driving while intoxicated (DWI) in New Jersey results in a mandatory period of driver’s license suspension, ranging from a minimum of three months for a first offense to 10 years for a third or subsequent offense. Driving while one’s license is suspended (DWLS) is a separate motor vehicle offense under New Jersey law, with possible penalties including fines, revocation of one’s vehicle registration, and jail time. In certain circumstances, a person can face a criminal charge for DWLS. Two defendants recently appealed their criminal DWLS convictions, arguing that the criminal statute did not apply in their circumstances. The New Jersey Appellate Division ruled in the defendants’ favor in both cases, State v. Jivani and State v. Torella, based on its own ruling on the same issue in 2015 in State v. Perry.

New Jersey’s criminal DWLS statute applies when a person is charged with DWLS while they are subject to a license suspension due to a conviction for DWI or refusal to submit to breath testing, and they have either (1) a prior conviction for DWLS during the same period of license suspension, or (2) a prior conviction for DWI or refusal. The first option applies when the person only has one DWI or refusal conviction, and when the statutory license suspension period is between three months and one year. The second option involves a second or subsequent DWI or refusal conviction, with a suspension period lasting two to 10 years. The statute imposes a mandatory 180-day jail sentence.

Once a driver’s license suspension term expires, a person must affirmatively request the reinstatement of their license from the state. They may still be subject to a DWLS charge if they resume driving without reinstating their license. The central question presented in the cases mentioned above is whether the criminal DWLS statute applies after a person completes their statutory period of license suspension, but before they reinstate their license.

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Urine Sample BottlesIn order to prove impairment in a driving while intoxicated (DWI) case, New Jersey prosecutors can present the arresting officer’s testimony about their observations of a defendant and the result of chemical testing that shows a defendant’s blood alcohol content (BAC) shortly after their arrest. Since DWI statutes in all 50 U.S. states create a presumption that a person is impaired if their BAC is 0.08 percent or higher, prosecutors often prefer to present chemical testing results. New Jersey law essentially requires drivers to submit to breath testing, but courts have set limits on when police may collect blood or urine samples. A recent article in the publication Vice documents an incredibly troubling—and frankly, cringe-inducing—practice of collecting urine samples by force.

The U.S. Supreme Court ruled in Schmerber v. California in 1966 that police may collect blood samples without a warrant in DWI cases, although it placed significant limits on that holding in 2013 in Missouri v. McNeely. The New Jersey Appellate Division held in Jiosi v. Township of Nutley in 2000 that Schmerber “did not provide a carte blanche exception to the warrant requirement whenever there is probable cause to believe a suspect is under the influence of alcohol or drugs.”

If police obtain a warrant for a blood or urine sample, the question then becomes which measures they may use to obtain that sample. New Jersey’s implied consent statute holds that anyone who drives on public roads in this state has consented to providing breath samples for BAC testing. It also states, however, that chemical tests cannot “be made or taken forcibly and against physical resistance thereto” by a DWI suspect.

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Athabasca Glacier, CanadaA conviction for driving while intoxicated (DWI) can have an impact far beyond any penalties imposed by a court. New Jersey’s DWI statute prescribes penalties that can include fines, a license suspension, the use of an ignition interlock device, and jail time. Laws at both the state and federal levels may impose restrictions, such as ineligibility for certain licenses or permits. A New Jersey DWI conviction may also affect a person’s ability to travel abroad. Canada, to name just one example, may bar someone from entering that country if they have one or more DWI convictions. This is a lesser-known consequence, but it could be an important factor to consider during the DWI prosecution process.

Each country’s immigration laws define who may enter the country and under which circumstances. People who want to visit a particular country must obtain that country’s permission. They may be able to do this by obtaining an entry document known as a visa. The United States issues visas to people intending to remain here permanently and to people who are coming here on a temporary basis. Nationals of some countries may come to the U.S. temporarily without a visa under the State Department’s Visa Waiver Program (VWP), provided they meet all the other requirements for admission.

U.S. immigration law states that certain people are inadmissible to the U.S., even as temporary visitors. These include people who admit to the use of illegal drugs, whether or not they have a drug-related criminal conviction. Canadian citizens, who do not need a visa under the VWP, may still find themselves denied entry to the U.S. if they admit to having ever used marijuana or other drugs. A DWI conviction may also be grounds for inadmissibility to the U.S., or grounds for revocation of a visa once someone is already here. Other countries’ bans on people with DWI convictions are not that different from our own laws.

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NJ_Transit_GP40PH-2B_4216_waits_to_pull_Train_4622A conviction for driving while intoxicated (DWI) or refusal to submit a breath sample results in mandatory driver’s license suspension under New Jersey law. The length of the suspension depends on whether or not the person has any prior convictions. In DWI cases, a person’s blood alcohol content (BAC) can also affect the length of the suspension. The New Jersey Legislature recently passed a bill, S20, which applies to train engineers employed by the New Jersey Transit Corporation, or NJ Transit. Previously, a driver’s license suspension associated with a DWI or refusal case had no effect on transit engineers’ authority to operate trains. One of the sponsors of S20 in the State Senate called this an “outrageous loophole in state law.”

A first-time DWI conviction in New Jersey results in a three-month driver’s license suspension, provided that the defendant’s BAC was less than 0.10 percent. If their BAC was 0.10 percent or higher, the mandatory period of license suspension is at least seven months, up to a maximum of one year. A second DWI conviction results in a two-year suspension, regardless of the defendant’s BAC. For a third or subsequent conviction, the suspension period is ten years.

New Jersey’s implied consent law states that anyone driving on the public roads of this state has consented to providing breath samples to police if they suspect DWI. Refusal to submit a breath sample under these circumstances is itself a motor vehicle offense. The length of the mandatory license suspension is similar to the DWI statute: seven months to one year for a first offense, two years for a second offense, and ten years for a third or subsequent offense. Out-of-state convictions for a similar statute may constitute a prior offense for the purpose of determining the length of the suspension.
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