By U.S. Navy photo by Mass Communication Specialist 1st Class Bruce McVicar [Public domain], via Wikimedia CommonsWhen police in New Jersey suspect someone of driving while intoxicated (DWI), they may ask them to take a field sobriety test (FST) before placing them under arrest. A person could “fail” FSTs for any number of reasons besides intoxication, such as injury, weather conditions, or even just standing on a slope. Challenging an officer’s administration of a test, which can significantly affect its outcome, can be extremely beneficial to a defendant’s case. As the first New Jersey lawyer qualified by the National Highway Traffic Safety Administration (NHTSA) to train law enforcement officers to administer FSTs, Evan Levow is in a unique position to assist defendants in DWI cases.

Many people believe that “passing” the FST will allow them to avoid being arrested, but most of the time, police have already made that decision. They usually hope that FST results will provide additional probable cause for the arrest, or that they will serve as circumstantial evidence of intoxication if chemical testing does not provide useful results. The state will try to show that any difference between how an officer explains a test and how a driver performs on it is evidence of impairment. The officer must follow specific guidelines for administering certain FSTs, however, and an error on the officer’s part could invalidate the entire test.

The NHTSA’s Standardized Field Sobriety Test (SFST) consists of three tests, with specific instructions for officers and a scoring system:

One Leg Stand, in which the officer looks for impaired balance. The driver is instructed to stand with one foot about six inches above the ground while counting aloud, usually for 30 seconds.
Walk and Turn, which also looks at balance as well as coordination and attention to instructions. The driver is instructed to walk heel-to-toe along a straight line, turn on one foot, and return along the same path.
Horizontal Gaze Nystagmus (HGN), which refers to the involuntary jerking motion of a person’s eyes during side-to-side movement. The officer might tell a driver to look at the tip of a pen or other object, then follow it back and forth with their eyes. The theory is that HGN will be faster or more pronounced in intoxicated people. New Jersey courts do not allow use of the HGN test as evidence of guilt, as discussed more below. Continue reading →

See page for author [Public domain], via Wikimedia Commons“Distracted driving,” which typically refers to texting or talking on the phone while driving, is the subject of a wave of new laws around the country. While the focus is often on mobile phones, “distracted driving” laws could cover a much wider range of activities. This is of concern to us as DWI attorneys because any activity that a police officer reasonably believes to be a distraction could be grounds for a traffic stop, and all of the potential consequences of a traffic stop. No states have passed laws addressing specific distractions besides cell phones, although legislators in New Jersey have tried.

According to the state Attorney General, distracted driving was a factor in about 1.4 million automobile accidents in New Jersey between 2004 and 2013. This is nearly half of the three million accidents that occurred during this time period. Distracted driving was not the cause of all of those accidents, just a factor, but lawmakers have taken note and are taking a hard line on the subject. The Attorney General identifies activities that could constitute distractions while driving, including eating, checking one’s hair or makeup, using a GPS device or reading a map, and even adjusting the stereo. Any of these could, in theory, be grounds for a traffic stop.

In Georgia, police issued a citation to a man in mid-January 2015 for the alleged offense of “eating while driving.” The officer reportedly told the man that he had followed him for two miles after he purchased a hamburger from a fast-food restaurant, and that the officer had witnessed him eating the entire time. The officer wrote a ticket under the state’s distracted driving law, which does not specifically mention eating. Aside from cell phones and other mobile communications devices, Georgia law only requires drivers to “exercise due care.” Continue reading →

See page for author [Public domain], via Wikimedia CommonsPending legislation in at least two states would restrict sales of alcohol to people convicted of DWI offenses. A bill in the New Mexico State House of Representatives would allow a court to include a prohibition on alcohol purchases in an order requiring use of an ignition interlock device (IID). A bill in the Oklahoma State Senate goes even farther, allowing a court to bar the purchase of alcohol by anyone convicted of DWI. Anyone providing alcohol to someone under such a restriction could face criminal liability. States have near-total control over the regulation of alcoholic beverages, and at least one state already has such a law on the books. Lawmakers and others have suggested similar legislation in Texas and Washington state, but New Jersey does not have a law allowing this sort of restriction.

The sale of alcoholic beverages was illegal throughout the United States during a period known as Prohibition, which began with the ratification of the Eighteenth Amendment to the Constitution in 1920. The Twenty-First Amendment, ratified in 1933, repealed the Eighteenth Amendment and left the regulation of alcoholic beverages up to the states. A series of Supreme Court decisions have explored the extent to which states may restrict the sale or purchase of alcohol. Alaska allows courts to order a person who has been convicted of DWI to “refrain from consuming alcoholic beverages,” and to prohibit him or her from purchasing alcohol. The state may issue a new driver’s license or other identification to a person subject to this restriction, which indicates the restriction.

New Mexico’s HB30 would amend the state’s IID law to allow a judge to prohibit a defendant from purchasing alcoholic beverages for as long as that individual is required to have an IID installed in his or her vehicle. Much like the Alaska law, the state would issue a new identification card indicating the alcohol restriction. The bill’s sponsor introduced it during the last legislative session in 2013. It passed the New Mexico House but failed to pass in the Senate. He introduced it again in December 2014. Continue reading →

193584 [Public domain, CC0 1.0 (], via PixabayThe U.S. Supreme Court issued a ruling in December 2014 that could have a significant effect on DWI cases in New Jersey. The case involves two fundamental principles of the American criminal justice system. First, law enforcement officers must have reasonable suspicion of a criminal or traffic offense in order to make a traffic stop. Second, it is not a defense to prosecution for a person to claim that he or she did not know something was illegal. What happens, however, when a police officer makes a mistake of law? In Heien v. North Carolina, a defendant argued that a traffic stop that resulted in drug charges was unreasonable because the officer incorrectly thought having only one working brake light was a traffic violation. The court held that the officer did not violate the defendant’s rights, despite not knowing the law, since the mistake was “reasonable.”

An officer pulled the defendant’s vehicle over in April 29, 2009 at about 8:00 a.m. He testified that he saw the vehicle pass on the highway and thought the driver looked “very stiff and nervous.” After following the vehicle for several miles, he noticed that it had only one working brake light. He pulled the vehicle over, believing this to be a traffic violation. The defendant, who owned the vehicle, consented to a search, and the officer found drugs.

The defendant pleaded guilty to drug charges after the trial court denied his motion to suppress the results of the search, reserving the right to appeal. A state appellate court reversed the conviction, finding that the traffic stop was unreasonable because the driver had not broken any traffic laws. The North Carolina Supreme Court reversed that ruling, and the U.S. Supreme Court affirmed the conviction. Continue reading →

Kim [CC BY-SA 2.0 (], via FlickrThe holiday season, starting with Halloween and continuing through Christmas and other winter holidays, always brings stories of unusual events that go “viral” on the internet, including strange or embarrassing DWI arrests. This unwanted, if usually only temporary, fame is yet another consequence of a DWI arrest that happens regardless of the outcome in court. A DWI attorney’s job is not only to represent his or her clients in court, but to help them minimize the impact of an alleged offense on their lives while the court case is pending. Several news stories from the past year, including one in New Jersey, fell into this category. Our intention in discussing them is not to embarrass or make light of anyone, but rather to illustrate some important points of New Jersey DWI law that people need to know at any time of year.

The most recent story occurred in late December 2014, when police in Riverdale, New Jersey claim that they found a man asleep in a vehicle who was dressed as the popular “Elf on the Shelf” holiday toy. Although the vehicle was parked, its engine was reportedly running, the headlights were on, and the stereo was playing loudly. The officers alleged that they noticed a strong odor of alcohol on the man’s breath. They administered a field sobriety test and took him to the station for breath testing. He was issued a summons for DWI and released to a family member.

DWI cases usually begin with a traffic stop based on a police officer’s reasonable suspicion that the driver is impaired. Under New Jersey law, however, officers do not actually have to witness the person driving. In this case, state law enforcement guidelines for DWI cases say that police could infer that the man had been operating the vehicle because of its location in a parking lot, or the fact that its engine was running and the headlights were on. These observations may support probable cause for an arrest, but prosecutors must still prove all of the elements of DWI to obtain a conviction. Continue reading →

Unsplash [Public domain, CC0 1.0 (], via PixabayNew Jersey law directs courts to apply sentencing enhancements for a second driving while intoxicated (DWI) conviction, with additional enhancements for third and subsequent convictions. In certain circumstances, however, trial courts may not use sentencing enhancements when the statute might otherwise require them to do so. A “step-down” provision in the DWI statute, for example, directs courts not to apply sentencing enhancements if enough time has passed since the most recent prior conviction. We recently represented a client who wanted to use the step-down provision, but the trial court would not allow it. It said that he was limited to one use of the step-down provision, and he had already used it once before. The New Jersey Supreme Court ruled in our client’s favor, finding that the DWI statute allows use of the step-down provision more than once.

The step-down provision, found in the last paragraph of Section 39:4-50(a)(3) of the New Jersey Revised Statutes, states that if a person’s second DWI offense occurs more than 10 years after the first offense, the court must treat the second offense as a first offense during sentencing. If a third offense occurs more than 10 years after the second offense, the court must use the sentencing guidelines for a second offense. A 1990 decision from the New Jersey Supreme Court, State v. Laurick, sets another important limit on a court’s sentencing authority. A court may not use a prior DWI conviction to enhance a subsequent conviction if the defendant was not represented by counsel in the prior case.

The defendant in our case had prior DWI convictions from 1981, 1982, and 1994. The trial court applied second-offense sentencing enhancements in the 1994 case, since, while it was technically the third offense, it occurred more than 10 years after the most recent prior offense. Here is where the case can get confusing. The defendant was not represented by an attorney in the 1982 case, so the trial court should not have considered it during sentencing. An appellate court reduced his sentence for the 1994 offense to first-offense levels. Continue reading →

By Alvesgaspar (Own work) [GFDL ( or CC BY-SA 3.0 (], via Wikimedia CommonsMany states, including New Jersey, have an “implied consent” statute that allows police, in cases of suspected driving while intoxicated (DWI), to collect samples for chemical testing without first obtaining a search warrant, whether the suspect consents or not. This usually involves collecting a sample of the suspect’s breath, but police may also direct a medical professional to draw a blood sample without a warrant in some circumstances. A 2013 decision from the U.S. Supreme Court significantly limited the ability of police to collect blood samples without a warrant, and several state supreme courts have followed suit. New Jersey continues to allow warrantless blood draws, although they are subject to new restrictions.

Under New Jersey law, anyone “operat[ing] a motor vehicle on any public road, street or highway or quasi-public area” within the state is considered to have consented to providing a breath sample, provided that a police officer has “reasonable grounds” to suspect the person of DWI. The U.S. Supreme Court held, in 1966’s Schmerber v. California, that police may collect a blood sample without a warrant, over a person’s objection, if they believe that there is not enough time to get a warrant before evidence is lost or destroyed. This is known as the “exigent circumstances” exception. New Jersey’s Supreme Court has followed this view, most recently in State v. Adkins in 2013.

The U.S. Supreme Court reversed its Schmerber holding on exigent circumstances in a 2013 decision, Missouri v. McNeely, which held that the mere fact that alcohol metabolizes over time does not constitute exigent circumstances. Since then, several states have revisited their laws regarding warrantless blood testing. The Texas Court of Criminal Appeals, that state’s highest criminal court, ruled in November 2014 in Texas v. Villarreal that a warrantless blood draw without the suspect’s express consent violates the Fourth Amendment, rejecting the state’s argument that the defendant could be deemed to have consented. The court noted that state supreme courts in Idaho, Nevada, Tennessee, South Dakota, and Arizona have also recently concluded that implied consent laws do not justify warrantless blood draws. Continue reading →

By W.S. Gilbert (d. 1911) [Public domain or Public domain], via Wikimedia CommonsThe right to a trial by jury is a fundamental principle of our criminal justice system enshrined in our Constitution. What many people might not know, however, is that jury trials are not guaranteed in all criminal cases. The Sixth Amendment only guarantees a jury trial in criminal cases where the potential penalty is more than six months’ imprisonment. A pair of U.S. Supreme Court decisions, spanning more than a century, established that this restriction extends to DWI cases. Some, but not all, states allow jury trials even when not constitutionally required to do so, but not New Jersey. DWI cases in New Jersey are tried as “traffic offenses” before a municipal court judge.

Article III of the Constitution, which establishes the Judicial Branch of the federal government, states that “[t]he Trial of all Crimes…shall be by Jury.” The Sixth Amendment states that a defendant has a right to trial “by an impartial jury.” These provisions originally only applied to federal criminal cases. The Fourteenth Amendment, ratified after the Civil War, extended the Sixth Amendment’s guarantee of the right to trial by jury in all criminal cases in state courts. The court system took some time, however, to figure out exactly how far this guarantee went.

An 1888 Supreme Court decision, Callan v. Wilson, considered what the word “crime” means as it is used in Article III and the Sixth Amendment. The court applied the definition from English common law, which made a distinction between serious crimes, including misdemeanors and felonies, and “petty offenses.” It found that the Sixth Amendment right to a trial by jury applied to serious crimes at the state level, but not petty offenses. Continue reading →

By WhisperToMe (Own work) [Public domain], via Wikimedia CommonsAn arrest for alleged driving while intoxicated (DWI) in New Jersey has serious consequences, even before charges are filed or the case goes to trial. A driver could face license suspension and other administrative penalties that are largely separate from the court procedures for a DWI case. He or she also may face a charge of refusal to submit to chemical testing, and in some cases courts have held that simply not blowing hard enough into a breathalyzer machine could support a refusal conviction. Certain other criminal charges are common in alleged DWI cases, some of which could significantly increase the penalties that a prosecutor might seek in court.

Other Traffic Charges

Many, possibly most, DWI cases begin when a police officer pulls a driver over. An officer must have reasonable suspicion that a traffic offense has occurred for any evidence collected during the traffic stop to be admissible in court. If the officer can prove that he or she witnessed the driver violate a traffic law, such as by speeding, running a red light, or changing lanes without signaling, the stop is probably supported by reasonable suspicion. An officer also may pull over a car if it appeared that the driver was impaired based on how he or she was driving. Once the stop is underway, other evidence, like the “smell of alcohol” so often cited in court, may support a DWI charge.

Since a DWI arrest often originates with another alleged traffic violation, it stands to reason that DWI cases often involve other traffic charges. Many of these are minor offenses, like failing to use a turn signal or avoiding a traffic light, while others, such as driving with a suspended license, are relatively more serious. Even if a driver can prove that he or she was not drinking, he or she could face charges for careless or reckless driving. Continue reading →

By Brad Shorr (The Straight North Blog) [Public domain], via Wikimedia CommonsThe New Jersey Supreme Court, in affirming the reversal of a DWI conviction, cautioned municipal courts throughout the state to keep pretrial suppression hearings separate from actual trials, noting that the two types of proceedings have substantially different purposes. The decision in State v. Gibson, issued on September 16, 2014, involved a conviction by a municipal court based solely on evidence presented at a pre-trial hearing on the defendant’s motion to suppress evidence, instead of at trial. The Appellate Division reversed the conviction and entered a judgment of acquittal. The Supreme Court affirmed the reversal but not the acquittal. It remanded the case for a new trial in municipal court.

A Winslow Township patrolman pulled the defendant over in November 2007 after the defendant allegedly passed his vehicle at a “high rate of speed” and changed lanes without signaling. The defendant reportedly agreed to field sobriety tests, but resisted arrest. He was charged with DWI, reckless driving, and failure to signal. A grand jury indicted him on several counts, including third-degree aggravated assault on a police officer. He pleaded guilty to the first count of the indictment in December 2008, and the rest of the counts were dismissed. The court remanded the motor vehicle charges, including the DWI charge, to the municipal court.

The defendant moved to suppress the evidence obtained in the traffic stop. The municipal court held a hearing on the motion in May 2010, where the patrolman testified regarding the alleged circumstances of the traffic stop. At a continuation of the hearing that October, the defense introduced the video of the stop and claimed that it contradicted the patrolman’s testimony. The court denied the motion to suppress, ruling that the patrolman had reasonable suspicion for the stop and probable cause for the arrest. It immediately moved on to the trial on the merits. Continue reading →