New Jersey’s law on driving while intoxicated (DWI) prohibits “operat[ing] a motor vehicle while under the influence” of alcohol or drugs, or with a blood alcohol concentration (BAC) of 0.08 percent or greater. Courts have addressed multiple challenges to the definition of “operate” under this statute. New Jersey courts have held that the key issue is a defendant’s intent to drive, and the Legislature’s objective of preventing drunk driving requires a broad definition of “operate.” The New Jersey Appellate Division reviewed these issues in a recent decision, State v. Cancelosi, in which a defendant challenged the state’s proof that he “operated” his vehicle.

snowThe Appellate Division’s ruling in Cancelosi drew heavily on the Law Division’s ruling affirming the defendant’s conviction. The Law Division judge cited multiple cases addressing the definition of “operating” a vehicle under the DWI statute. Intent to drive is at the center of the “inquiry into operation,” according to several New Jersey Supreme Court rulings. In 1973, State v. Daly held that “evidence of intent to drive or move the vehicle” can prove the “operate” element of the statute. The court held in 1987’s State v. Tischio that “a drunk driver offends the law when he evinces an intent to drive his car.” It also held in that case that “a narrow or literal interpretation would frustrate the fundamental regulatory goals underlying New Jersey’s drunk-driving laws.”

A 1963 New Jersey Supreme Court decision, State v. Sweeney, held that the state does not necessarily have to prove any movement by the vehicle. In that case, police found the defendant in a vehicle on the side of a public road with the engine running. Since then, courts have found that circumstantial evidence is admissible to prove that a defendant “operated” a vehicle. The Appellate Division’s 2005 ruling in State v. Ebert stated that circumstantial evidence may include “observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated.”

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Security CameraThe state has the burden of proving that a defendant is guilty of an alleged criminal or motor vehicle offense beyond a reasonable doubt. The New Jersey court system has rules governing the admissibility of evidence, and a defendant may object to certain evidence for a wide range of reasons. In cases of alleged driving while intoxicated (DWI), defendants often challenge the results from an Alcotest device, which measures a person’s blood alcohol concentration (BAC). The New Jersey Appellate Court recently ruled on a DWI defendant’s challenge to the admission of Alcotest evidence during his trial in State v. Patel. The defendant did not challenge the test itself or the results. Instead, he argued that the state had violated his due process rights by failing to preserve surveillance video footage from within the police station taken at the time of the test.

The use of an Alcotest device by police in DWI investigations is subject to multiple mandatory procedures, many of which were established by the New Jersey Supreme Court in a 2008 decision, State v. Chun. Prior to administering the test, an officer must observe the suspect for a continuous 20-minute period. During that time, the officer must make certain that the suspect does not eat or drink anything, place anything else in their mouth, touch their mouth, or regurgitate anything into their mouth. The defendant in Patel argued that surveillance footage would show that the officer failed to meet this observation requirement.

In evaluating the defendant’s challenge to the Alcotest results, the Appellate Division reviewed case law regarding the state’s duty to preserve evidence and its duty to provide evidence to a defendant. The U.S. Supreme Court ruled in 1963’s Brady v. Maryland that the Due Process Clause of the Fourteenth Amendment requires the state to provide exculpatory evidence in its possession to a criminal defendant. New Jersey has applied the same rule to traffic offenses, including DWI, in cases like 2012’s State v. Carrero. These decisions leave it to the state to determine whether evidence is exculpatory or not. In practice, defendants must often take affirmative steps to identify and request—or demand—such evidence from prosecutors.

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question markNew Jersey’s implied consent law states that a person who operates a motor vehicle on the public streets and highways of this state is deemed to have consented to providing breath samples during investigations of suspected driving while intoxicated (DWI). Prior to collecting a breath sample in this situation, a police officer must read a “Standard Statement” explaining the law and the consequences of refusing to submit a sample. Penalties for refusal can include license suspension, monetary fines, and the use of an ignition interlock device. A defendant appealed his refusal conviction under the “confusion doctrine,” which the New Jersey Supreme Court described in a 1987 decision, State v. Leavitt. The Appellate Division rejected this argument in June 2016 in State v. Byrne, holding that the “confusion doctrine” only applies to refusal cases in very limited circumstances.

Law enforcement officers throughout the country are required to read a list of rights to a person during or shortly after their arrest. The U.S. Supreme Court established this obligation in its 1966 decision in Miranda v. Arizona. This list of rights, which begins with the familiar phrase “You have the right to remain silent,” is commonly known as “Miranda rights.” The process of reading those rights to someone is sometimes called “Mirandizing” them.

The Standard Statement used in DWI arrests in New Jersey is significantly different from the Miranda statement. While the Miranda statement discusses an individual’s Fifth Amendment right against self-incrimination—i.e., the “right to remain silent”—and the right to representation by an attorney, the Standard Statement says that these rights do not apply with regard to the taking of a breath sample.

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asthma inhalerNew Jersey’s driving while intoxicated (DWI) law places a great deal of emphasis on a defendant’s blood alcohol concentration (BAC). Police can determine a DWI suspect’s BAC by testing a sample of breath, blood, or urine. Breath testing is the most common method, and New Jersey’s implied consent law makes it a traffic offense to refuse a police officer’s demand for a breath sample. Not everyone is physically capable of providing a sufficient sample, however. The New Jersey Superior Court, Appellate Division recently ruled, in State v. Monaco, that a defendant has the burden of proving that a physical condition prevented them from completing a breath test.

Refusing to submit to breath testing is a traffic offense under New Jersey law, with penalties comparable to a first-time DWI. These can include fines, license suspension, and the use of an ignition interlock device. New Jersey police generally use a breath-testing device known as the Alcotest. Court decisions have established procedures that police must follow prior to and during breath testing, including a 20-minute waiting period during which the DWI suspect cannot touch or place anything in their mouth.

The Alcotest device requires at least 1.5 liters of air, which typically requires a person to exhale forcefully for at least four and a half seconds. Not everyone is capable of providing this much air through sustained exhalation. This was a key issue in the defendant’s appeal in the Monaco case.

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ignition interlock deviceNew Jersey’s implied consent law makes it a traffic offense to refuse to submit a breath sample during a driving while intoxicated (DWI) investigation. Because of the wide range of possible consequences for refusal, state law requires police to read a “standard statement” detailing those consequences before requesting a breath sample. Several years ago, the New Jersey Legislature made the use of an ignition interlock device (IID) mandatory for certain DWI and refusal convictions. A DWI defendant recently argued to the New Jersey Superior Court, Appellate Division that her refusal conviction should be thrown out because the standard statement in use at the time did not mention required IID use. The court ruled against the defendant in State v. Monaco but offered an overview of when a defective notification should result in relief for a defendant.

An IID is a device that attaches to a car’s ignition mechanism. In order to start the car, the driver must blow into the device, which measures their blood alcohol concentration (BAC). If the person’s BAC is above a certain amount, the IID prevents the car from starting. An IID must be professionally installed, and the defendant must bear the cost of the device in order to retain their driving privileges. Failing to install an IID as ordered, tampering with an IID, or otherwise circumventing or attempting to circumvent the device is a separate offense.

For a first DWI offense, an IID is required if the defendant’s BAC was 0.15 percent or higher, and it must be used for a period of six months to one year after the end of the license suspension. A conviction for refusal requires an IID installation for the same length of time. A second or subsequent DWI offense requires an IID installation for one to three years after the suspension period ends, regardless of BAC.

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parking signIn order to convict someone of driving while intoxicated (DWI) in New Jersey, prosecutors do not necessarily have to provide direct evidence that the defendant was driving a car. This state’s DWI law, as interpreted by the courts, only requires proof that a defendant had control of a vehicle and had recently driven or intended to drive. A recent DWI trial involved a driver found sleeping in his car with the engine running. A municipal judge acquitted him of DWI after finding that the state had failed to prove that the defendant had driven the vehicle to that location himself, or that he intended to drive the vehicle.

The New Jersey DWI statute makes it a traffic offense to operate a motor vehicle while under the influence of alcohol or various drugs. Many DWI arrests begin with a traffic stop, in which a police officer witnesses a driver operating a vehicle in a way that leads them to suspect DWI. This is far from the only way an officer can develop reasonable suspicion of DWI, however. Some situations may present a reasonable inference that an individual has recently driven their vehicle while intoxicated, such as when an officer responds to the scene of a recent auto accident and observes the driver’s behavior.

The present case involved a situation in which the arresting officer did not witness the defendant driving, and also the defendant was arguably doing something responsible:  waiting to sober up before driving. In this particular case, the defendant was waiting in his vehicle with the engine running. In January 2016, the arresting officer found the defendant asleep in his car, which was parked outside an Elks Lodge. The officer arrested the defendant, who was later charged with DWI.

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rainy highwayIn any prosecution by the state, it is critically important that a defendant be able to review any and all evidence that could be used against them in court. A long series of court rulings has established defendants’ right to this evidence. Unfortunately, prosecutors and police are not always forthcoming with evidence. In driving while intoxicated (DWI) cases, footage from police dashboard cameras, also known as mobile video recorders (MVRs), can sometimes help a defendant rebut the state’s charges. According to a ruling issued by the New Jersey Appellate Division in late June 2016, Paff v. Ocean Cnty. Prosecutor’s Office, these videos are part of the public record. This ruling could be a double-edged sword for DWI defendants, however. They might be able to access their own MVR footage more easily, but so can anyone else.

The common-law right of access, as described by the U.S. Supreme Court in Nixon v. Warner Comms. in 1978, holds that the public has “a general right to inspect and copy public records and documents.” Statutes like the federal Freedom of Information Act (FOIA) and the New Jersey Open Public Records Act (OPRA) also address public access to government records. This is different from a defendant’s right to information specific to their case. In some situations, the government may have a legitimate reason to withhold information from the general public that they must provide to a defendant. Since the Ocean County ruling expands the public’s right to obtain information from the government, it is reasonable to conclude that it can benefit people charged with DWI and other offenses.

The downside to the ruling is that making MVR footage available to the public has implications for DWI defendants’ privacy rights. Footage of a traffic stop, potentially including field sobriety tests, could cause embarrassment or other negative outcomes. This is especially worrisome if video footage is released while a DWI case is still pending, or after an acquittal or a dismissal of charges.

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pillsProsecutors can offer evidence of impairment by several means other than alcohol in driving while intoxicated (DWI) cases, such as illegal drugs, prescription medications, or even certain over-the-counter medications. In one recent DWI case in New Jersey, a defendant claimed that, at the time of her arrest, she was having a reaction to sleeping pills and was not aware that she was driving. This is known as “pathological intoxication,” but while it might seem like a person in this situation lacks the same level of culpability as in other cases, New Jersey law does not allow it as a defense in DWI cases.

The New Jersey Code of Criminal Justice (CCJ) defines “pathological intoxication” as being “grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible.” It is considered a type of “involuntary intoxication,” which New Jersey law contrasts with “self-induced intoxication.” To understand why New Jersey courts do not allow pathological or involuntary intoxication as a defense in DWI cases, it is important to know how an involuntary intoxication defense affects criminal cases.

New Jersey courts have held in criminal prosecutions that involuntary intoxication is not a defense unless the statute specifically allows it. (See, for example, State v. Kotter.) The key question when a defendant claims involuntary intoxication is whether or not the law requires the state to prove that the defendant had a certain “mental state,” meaning, for example, acting intentionally or recklessly.

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birdPolice and prosecutors in New Jersey must prove that a person charged with driving while intoxicated (DWI) was impaired by alcohol or drugs when they were operating a vehicle. They frequently do this with evidence that a person’s blood alcohol concentration (BAC) was 0.08 percent or higher, but they can also prove impairment in other ways. An officer’s observations of a driver’s behavior and appearance, when combined with evidence of the officer’s experience in assessing intoxication, can serve as evidence for the purpose of a DWI prosecution. Field sobriety tests (FSTs) allow officers to evaluate whether a person shows physical signs of intoxication and then offer testimony about how the person performed. The reliability of FSTs has some scientific support, but they remain controversial and subject to challenge by DWI defendants.

New Jersey’s implied consent law requires drivers to submit breath samples during DWI investigations, but this usually happens after an arrest. An officer who has stopped a vehicle on suspicion of DWI might use FSTs to establish probable cause for an arrest. The earliest examples of FSTs probably date back to the beginning of the automobile era. No uniform standard for FSTs existed in the U.S. prior to the 1970s. Different police departments developed their own FST regimens, with little to no scientific study into their accuracy or reliability in assessing impairment.

In 1975, the National Highway Traffic Safety Administration (NHTSA) retained the Southern California Research Institute (SCRI) to research multiple FSTs in order to identify the ones with the highest accuracy. The SCRI conducted laboratory and field tests, resulting in three Standardized Field Sobriety Tests (SFSTs) that the NHTSA now promotes as a uniform standard for the whole country. They are the Walk-and-Turn test, the One-Leg-Stand test, and the Horizontal Gaze Nystagmus (HGN) test.

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Conditional flowchartA defendant charged with driving while intoxicated (DWI) in New Jersey may choose to plead guilty or may face a trial before a municipal judge. If the judge finds them guilty, they may be able to appeal to the New Jersey Superior Court, Law Division, and from there to the Appellate Division and the New Jersey Supreme Court. A defendant can also appeal a municipal court’s denial of a pretrial motion, but this requires entering a conditional guilty plea. The New Jersey Rules of Court (NJRC) include separate provisions for appealing the denial of a motion to suppress, which asserts constitutional rights under the Fourth Amendment, but courts have held that this type of appeal also requires a conditional plea of guilty. In February 2016, the Appellate Division ruled in State v. Ricca that a DWI defendant must conditionally plead guilty in order to appeal the denial of a suppression motion.

A “conditional plea” is one in which a defendant reserves the right to appeal on specific issues. In criminal cases, Rule 3:9-3(f) of the NJRC states that a defendant must enter a conditional plea of guilty in order “to appeal from the adverse determination of any specified pretrial motion.” If the appeal is successful, the defendant can withdraw their plea. Rule 3:5-7(d) states that a defendant can appeal the denial of a motion to suppress even if they have pleaded guilty in the case. This seems to differ from the more general rule, but the Appellate Division held in 1981’s State v. Morales that this sort of appeal also requires a conditional plea of guilty. The New Jersey Supreme Court reiterated this holding in 2003’s State v. Greeley.

A separate set of rules in the NJRC governs proceedings in municipal court, which are not considered “criminal” cases under state law. The rules regarding appeals of pretrial motions, however, are basically identical to those for criminal cases. Rule 7:6-2(c) establishes a conditional guilty plea as a prerequisite for an appeal of a pretrial motion. Rule 7:5-2(c)(2) states that a defendant can appeal a motion to suppress even after pleading guilty. The Greeley decision included this rule with Rule 3:5-7(d) in finding that a defendant must enter a conditional plea.

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