cascalheira [Public domain, CC0 1.0 (], via PixabayA charge of alleged driving while intoxicated (DWI) in New Jersey requires a thorough and vigorous defense from the moment charges are filed. A recent decision from the New Jersey Superior Court, Appellate Division, State v. Haas, demonstrates that a court may not be able to reduce certain penalties prescribed by state law, regardless of the circumstances. The municipal court ordered that the defendant was subject to “house arrest” while his appeal of the merits of his conviction was pending in the Superior Court, Law Division. The Law Division, while denying his appeal, credited his 149 days of house arrest as “time served” towards the 180-day minimum sentence for a third or subsequent DWI offense. The state appealed this decision, and the Appellate Division ruled that a credit against the mandatory minimum sentence is not authorized under New Jersey law.

The municipal court convicted the defendant of his third DWI offense. For a third or subsequent DWI conviction, § 39:4-50(a)(3) of the New Jersey Revised Statutes imposes a sentence of “not less than 180 days in a county jail or workhouse,” with the possibility of reducing the total sentence by up to 90 days for participation in certain drug or alcohol treatment programs.

The defendant asked the municipal court to stay the sentence while he appealed the conviction to the Law Division. New Jersey Court Rule 7:13-2 allows a municipal court to stay all or part of a sentence “on such terms as the court deems appropriate.” The court ordered the defendant confined to his home during the appeal. He could only leave to see his counsel, his doctors, and, at the defendant’s request, for one three-hour visit per week with his adult daughter, for whom he provided care after she suffered a brain injury.

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By en:User:Sponge [GFDL ( or CC-BY-SA-3.0 (], via Wikimedia CommonsDiversion programs, commonly known as “drug courts,” are becoming increasingly common around the country. Courts may refer a case to a local drug court in order to provide more focus on rehabilitation and recovery, rather than guilt and punishment. Defendants charged with nonviolent drug- or alcohol-related offenses may be eligible. In New Jersey, drug court procedures are mandatory for certain cases, and they may be available in some DWI cases. A recent decision by the New Jersey Superior Court, Appellate Division, State v. Borges, examined some of the factors that may prevent admission of a defendant in a DWI-related case into a drug court program.

New Jersey’s drug courts are established within the existing Superior Court system. They typically involve a team of specialists in substance abuse and treatment, who work with prosecutors, court staff, probation officers, and others. Defendants who are admitted to drug court must complete various court-ordered services, submit to regular drug testing, and generally stay out of trouble. Failure to complete the program could result in jail or prison time. The use of drug court procedures is growing, with the number of voluntary admissions increasing by 25 percent between 2012 and 2013. A bill signed by the governor in 2012 makes drug court procedures mandatory in certain cases. Mandatory drug court sentencing began in 2013 in five counties, followed by four more counties in 2014.

Drug court procedures may be available in some DWI and DWI-related cases as an alternative to a jail sentence. The defendant in Borges was charged with driving while license suspended (DWLS), where the license suspension was due to a DWI conviction. The municipal court denied her request for admission to drug court. State law excludes defendants from drug court if they are subject to a mandatory minimum sentence. Since the defendant’s license suspension was due to a second or subsequent DWI conviction, state law requires a minimum jail sentence of 180 days. The municipal court therefore held that the defendant was not eligible for drug court. It did, however, offer to admit her to the program after she completed a 180-day jail sentence. The defendant refused this offer and filed an appeal.

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rochelle hartman [CC BY 2.0 (], via FlickrThe New Jersey Superior Court, Appellate Division reversed a defendant’s DWI conviction in January 2015 in State v. Barillari, based on discrepancies between the municipal court’s findings and the findings of the Superior Court, Law Division. The state had presented the arresting officer’s testimony regarding the defendant’s driving, demeanor, appearance, and performance on field sobriety tests (FSTs). Several fact witnesses and an expert witness, testifying for the defendant, challenged the officer’s testimony and his handling of the FSTs. The municipal court found the defendant guilty of DWI, relying on some, but not all, of the state’s evidence. The Law Division appeared to rely on evidence specifically disregarded by the municipal court. Because of this discrepancy, the appellate court remanded the case for a new trial.

The defendant was arrested on a snowy night in December 2009. The arresting officer testified that he witnessed the defendant “doing fishtails in a Jeep” in a restaurant parking lot. He claimed that he detected the odor of alcohol and that the defendant’s eyes were “bloodshot and watery.” The defendant reportedly stated that he had two beers earlier in the evening. The officer had the defendant perform several FSTs, including the horizontal gaze nystagmus (HGN) test, in an area of the parking lot with “a light coating of snow.” The defendant did not perform well on the FSTs. When completing the standard questionnaire after his arrest, the defendant allegedly stated that he had four beers that night.

At trial, the defendant called four lay witnesses:  two friends who were with him from at least late afternoon, the manager of the restaurant where the arrest took place, and the restaurant bartender. They offered generally consistent testimony that the defendant and his two friends arrived at the restaurant for dinner. When the manager decided to close at 9:00 because of the snow, he offered to give the defendant a ride home. The defendant offered to warm up the manager’s Jeep and drove it around the parking lot to warm it up and to make room for a snow plow.

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By 1st United States Congress [Public domain], via Wikimedia CommonsA defendant in a New Jersey DWI case claimed that the municipal court denied him two important constitutional rights:  the right against self-incrimination and the right to a trial by jury. The Fifth Amendment to the U.S. Constitution provides that no one may be compelled to give testimony against themselves in a criminal case. This has led to the well-known “right to remain silent” during and after an arrest, as well as strict rules prohibiting prosecutors from using a defendant’s silence as evidence of guilt. The Sixth Amendment guarantees the right to a jury trial in many, but not all, criminal cases. The New Jersey Superior Court, Appellate Division’s opinion in this case, State v. Engle, explains how these rights apply in many DWI cases.

A police officer pulled the defendant over for allegedly making an illegal left turn. The officer claimed that he “detected an odor of alcohol” coming from the defendant’s vehicle and observed that the defendant’s eyes were “bloodshot and glassy.” He asked the defendant to perform several field sobriety tests (FSTs), and he testified that the defendant did poorly on all of them.

A medical doctor testified for the defendant, stating that his “excessive weight and reconstructed left knee” prevented the defendant from performing well on the FSTs. He also testified that the defendant’s bloodshot and glassy eyes were consistent with a cold the defendant stated he had at the time. Prosecutors countered by noting that the defendant did not complain about pain during the tests, nor did he inform the officer of any medical conditions that could affect the FSTs. The municipal court convicted the defendant of DWI, improper turn, and several other offenses.

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By Crispy1995 at English Wikipedia (Transferred from en.wikipedia to Commons.) [Public domain], via Wikimedia CommonsAre breath or blood test results required to prove that a driver was legally intoxicated? While test results showing blood alcohol content (BAC) above 0.08 percent might be the most well-known means of proving intoxication, it is not the only means. A defendant recently asked a New Jersey appellate court to reverse his DWI conviction, arguing that the state lacked sufficient evidence to prove DWI without BAC evidence. The trial court had based its decision on testimony from the arresting officers. The appellate court reviewed New Jersey law regarding how the state may prove impairment in a DWI case, and it affirmed the convictions in State v. Robinson in February 2015.

According to the court’s opinion, the arresting officers observed the defendant’s pickup truck at about 2:00 a.m., traveling on I-287 at between 80 and 85 miles per hour and changing lanes without signaling. The defendant, after pulling over, reportedly told the officers that he had just worked a 14-hour shift, was very tired, and simply wanted to go home. The officers stated that they did not detect any odor of alcohol, although they claimed that defendant’s speech “was a little slurred.” They accepted his explanation, cited him for careless driving, and warned him against speeding.

At that point, according to the officers, the defendant “bolted” in his truck, quickly accelerating back to around 85 miles per hour. The officers testified that they had to drive close to 100 miles per hour to overtake him. The other officer spoke to the defendant when he pulled over. He also did not notice any alcohol smell, but he claimed that the defendant had difficulty getting his driver’s license out of his wallet. This officer had the defendant perform several field sobriety tests, including the walk and turn test and the one-legged stand test. He claimed the defendant did poorly on both. At this point, the officers arrested the defendant for DWI.

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By joiseyshowaa from Freehold, NJ, USA (Fall Colors - country road  Uploaded by Gary Dee) [CC BY-SA 2.0 (], via Wikimedia CommonsA defendant appealed his conviction of driving while license suspended (DWLS) to the New Jersey Superior Court, Appellate Division, claiming that the trial court should not have counted DWI convictions from New York as prior convictions under New Jersey law. State criminal law treats DWLS as a criminal offense, not a traffic offense, when the suspension is due to prior DWI convictions. The appellate court affirmed the trial court in State v. Galdieri, finding that state law includes out-of-state convictions, even if a prior case included mistakes of law.

DWLS is normally a traffic offense under New Jersey law. It is a crime of the fourth degree, however, if the reason for the suspension is a second or subsequent conviction for DWI or refusal to submit to breath testing. According to the court, the defendant in Galdieri had two DWI convictions from the state of New York, although it does not say when these occurred. The defendant pleaded guilty to DWI in a New Jersey court in October 2012. The court suspended his license for three months, which is the penalty for a first DWI offense. This apparently happened because the judge was not aware of the New York cases. Twelve days later, the defendant was pulled over and charged with DWLS, which resulted in the present case.

The defendant pleaded guilty to criminal DWLS in June 2013, based on the prior DWI convictions. On appeal, the defendant apparently conceded that he had prior DWI convictions from the state of New York, but he claimed that they should not count towards enhancing the offense to the criminal level. He argued that the October 2012 DWI conviction in New Jersey should count as a first offense, since it was the only New Jersey conviction and the judge imposed the penalty for a first offense.

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By Rob Hille (Own work) [Public domain], via Wikimedia CommonsA person’s blood alcohol content (BAC) at the time of an arrest for suspected driving while intoxicated (DWI) is not the only factor police and prosecutors may take into account. Numerous other factors come into play, and a person could be charged with DWI or related offenses even if chemical testing shows a low BAC. This was demonstrated by the recent arrest of a man for intoxication manslaughter, despite a breath test reportedly showing BAC below the legal limit. Defending a case without BAC evidence, or with BAC results that are less than 0.08 percent, presents different challenges than a case that relies on breath or blood testing.

Police arrested a man in Austin, Texas in mid-January 2015 after the pickup truck he was driving allegedly collided with another vehicle at about 1:40 a.m. The driver of the other vehicle was pronounced dead at the scene. The driver of the pickup truck allegedly told officers that he had had two beers at a bar earlier. He also allegedly admitted running a stop sign immediately before the collision.

A portable breathalyzer test showed a BAC of 0.07 percent, below the legal limit of 0.08 percent. Officers at the scene, however, stated that they observed enough other factors to conclude that he was legally impaired, and that probable cause existed to charge him with intoxication manslaughter, a specific offense under Texas law. The fact that this case involved a fatality undoubtedly played a role in the decision to charge the driver with an alcohol-related offense despite the BAC results, but the state is not required to demonstrate a BAC of 0.08 percent or higher to prove DWI in all cases. This is true in New Jersey as well as Texas.

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Nemo [Public domain, CC0 1.0 (], via PixabayNew Jersey Governor Chris Christie rejected the Legislature’s effort to reform state law regarding penalties for driving while intoxicated (DWI) in a conditional veto issued in late March 2015. A “conditional veto” allows the Governor to object to a bill as passed, while presenting proposed revisions or a replacement. The Legislature may then decide whether or not to approve the Governor’s changes. The bill, passed by both houses of the Legislature, would substantially reduce mandatory license suspension periods while increasing requirements for ignition interlock devices (IIDs). The Governor’s primary objection was apparently to the repeal of mandatory license-suspension periods.

The bill, A1368, was first introduced in the Assembly in January 2014. The Assembly passed it in June 2014, followed by the Senate in February 2015. A substantial portion of the bill addresses license suspension and IID requirements. The New Jersey DWI statute currently requires, for first-time DWI offenders, a three-month license suspension if a person’s blood alcohol content (BAC) was 0.08 percent or higher but less than 0.10 percent, or a license suspension of seven months to one year if their BAC was 0.10 percent or higher. For a second DWI offense, current law mandates a two-year license suspension, followed by required installation of an IID. A third or subsequent offense results in a mandatory 10-year suspension with an IID requirement.

Under the changes made by A1368, the mandatory license suspension period for almost all DWI offenses would be 10 days, during which time they would be required to have an IID installed in their vehicle as a condition of license reinstatement. The period of time a person would be required to continue using the IID roughly corresponds to the length of the mandatory license suspensions under the current statute. The bill generally gives judges discretion to impose different periods of license suspension or IID use, based on factors like risk to the public, the person’s driving record, length of time without traffic violations, and hardship to the person or the person’s dependents.

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JoshE3 at English Wikipedia [CC BY-SA 3.0 (], via Wikimedia CommonsA New Jersey appellate court recently considered the question of whether a defendant must inform the court of prior convictions that, under New Jersey law, could result in an enhanced sentence. In an unpublished February 2015 decision, State v. Kane, the court ruled that a defendant charged with driving while license suspended (DWLS) was not obligated to inform prosecutors or the court that the suspension was due to a driving while intoxicated (DWI) conviction. State motor vehicle and criminal statutes include enhanced penalties in certain DWLS cases where DWI was the reason for the suspension. The court rejected the state’s arguments that the defense’s failure to provide this information constituted fraud and a breach of attorney ethics rules.

The defendant was arrested in January 2012 in Ocean City for talking on a cell phone while driving. She was subject to a 10-year suspension of her driver’s license at the time, according to the court, because of multiple DWI convictions. She pleaded guilty to DWLS in municipal court that March. DWLS is normally a “non-indictable offense,” and the judge sentenced her to 30 days in jail, to be served intermittently.

New Jersey law prescribes enhanced penalties for a DWLS if the underlying reason for the license suspension is a DWI offense. About seven months before the defendant’s plea, in August 2011, a new criminal statute became effective that made the defendant’s DWLS offense an indictable offense, with substantially greater penalties. The statute allows prosecution of DWLS as a fourth-degree crime, as opposed to a traffic offense, if the license suspension was due to DWI, and the defendant has one or more prior DWLS convictions.
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By SubDural12 (Own work) [Public domain], via Wikimedia CommonsNew Jersey’s legal system has developed several methods to discourage people with convictions for driving while intoxicated (DWI) and related offenses from getting behind the wheel after drinking. Along with every other state and the District of Columbia, New Jersey requires the use of ignition interlock devices (IIDs) in certain situations. At least one state has gone much further in restricting people with convictions, or even just arrests, for DWI and other offenses. Utah’s “alcohol restricted driver” (ARD) law prohibits drivers from operating a vehicle with any alcohol in their system for periods ranging from two to ten years, with a lifetime ban in some circumstances.

In order to start a vehicle equipped with an IID, the person must blow into the device, which operates much like a breathalyzer or other breath-test machine. If the device determines that the driver’s blood alcohol content (BAC) is above a threshold amount, which is usually 0.05 percent in New Jersey, it prevents the vehicle from starting for a period of several hours. The “legal limit” for DWI is 0.08 percent.

New Jersey’s DWI statute makes installation of an IID mandatory for offenses involving a BAC result of 0.15 percent or higher, as well as first-offense convictions for refusal to submit to chemical testing. A judge has discretion to order an IID for lesser offenses. Driving with a BAC above the IID amount, but below the legal limit of 0.08 percent, is not automatically a violation under New Jersey law, but any attempt to circumvent the IID, including by driving someone else’s car after drinking, is considered a violation.
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