New Jersey DWI Attorney Blog

A New Jersey DWI stop, arrest or conviction for an an illegal immigrant involves special and significant concerns. The immigrant has no driver's license or other documents to establish the privilege to drive or to be in this country, and the arrest and conviction may result in his or her deportation.

According to an article in USA Today, published at http://www.usatoday.com/news/washington/2011-07-22-criminal-immigrants_n.htm, drunk driving arrests or convictions are resulting in an increasing number of deportations. Until recently, this was not as big of an issue for New Jersey DWI arrests, as a New Jersey DWI is considered a traffic offense and not a criminal offense. New Jersey is one of only two states to categorize DWI as a traffic offense.

However, depending on how Immigrations and Customs Enforcement (ICE) views the arrest, conviction and circumstances of the New Jersey DWI arrest, even a New Jersey DWI arrest or conviction could form part or all of the reasoning for ICE to commence deportation procedures. It is therefore extremely important to hire a qualified New Jersey DWI attorney to review your case and fight the charges against you. You should also consult with immigration counsel to determine the possibility or likelihood of deportation.

If the New Jersey DWI involves an accident or particularly a fatality, the likelihood of ICE intervention increases dramatically, and is almost a certainty. If a felony level conviction results from the DWI based assault by auto, that conviction will affect immigration status if it comes to the attention of ICE.

According to the USA Today article, the U.S. deported nearly 393,000 people last year. Of those, 27,635 had been arrested for drunken driving. An additional 13,028 were deported last year after being arrested on less serious traffic law violations. Most of the immigrants deported last year had committed drug-related crimes. They totaled 45,003. Drunken driving was third in the number of offenses last year.

ICE attempts to categorize each deported immigrant in its statistics based on the worst crime in the person's record. ICE says the statistics involve only people who have been convicted of a crime. This may be the loop hole that will not cause a New Jersey DWI conviction to result in deportation, since the record of a New Jersey DWI conviction is not reported as a crime. A New Jersey DWI conviction does not appear on an individuals criminal record as reported by the NCIC - National Crime Information Center.

In such a serious situation, it is best to challenge the evidence against you in the most appropriately aggressive way possible. Consult with an experienced New Jersey DWI attorney to evaluate the specific circumstances of your case.

Police departments in many towns in New Jersey are now utilizing portable hand held breath testing devices known as preliminary breath testers, or PBT's. A PBT can either report an actual breath test result in numerical format such as 0.08% breath alcohol, or it can simply show a positive or negative result, signifying whether alcohol is present in the breath or not.

The PBT's are generally supposed to be used at the end of the investigation, and not as the basis to continue an investigation. The theory is that once the officer confirms the presence of alcohol, any subjective evidence collected thereafter, such as field exercises administered to the suspect and interpreted by the officer, may be tainted by the positive result on the PBT. Therefore, PBT's are intended to be "confirmatory" devices once the officer has undertaken other subjective testing.

No one ever has to submit to a PBT roadside. The implied consent law, which states that a driver in New Jersey must submit to breath testing where an officer has reasonable suspicion that he or she is under the influence of alcohol, applies only to evidential breath testing on an approved machine, such as the Alcotest 7110 MKIII-C, which is the only approved evidential breath testing machine currently in use in New Jersey.

When asked to blow into the PBT, a suspect is not usually advised that he or she does not have to blow into the device. If you refused to blow into the device, you cannot be charged with "Refusal to Submit to Chemical Testing".

If the PBT shows a breath test result under 0.08%, and the officer believes that the individual is impaired, the officer may still arrest the driver. The arrest may be based on the officer's belief that, even though the driver is not over the "per se" limit of 0.08%, the individual's ability to operate the vehicle is still affected by alcohol. A conviction can be sought and obtained if it can be proven beyond a reasonable doubt that alcohol caused a deterioration of the driver's ability to operate the car. The officer also may believe that there are other causes of inebriation, such as a drug based intoxication, and will arrest based on the general observation of the driver, and then conduct more physical testing back at the police station. Urine or blood testing may be sought, as well.

An interesting issue arises when the driver submits to the PBT roadside, but then declines to submit to the breath testing in station. Technically, the driver must submit to the breath testing on the Alcotest machine in station, based on the implied consent law. If the driver does not submit, he or she will be given a separate charge of "Refusal". However, if the driver says or thinks, "I gave a breath test roadside, already. I failed that test according to the officer. Why would I want to submit again when I already did, and provide even more evidence against me." There could be confusion regarding the issue of submitting to the testing.

This issue and many others surrounding the use of the PBT should be evaluated by a qualified New Jersey DWI defense attorney. Never assume that you will be automatically convicted of all the charges against you.

As a New Jersey DWI defense attorney, I always review my client's prior convictions to determine which, if any, can be overturned or to determine if the effect of the conviction can be minimized for sentencing issues in the current pending case. I have written in this blog quite a bit about New Jersey Post Conviction Relief, or PCR, practice, because it is so important in the assessment of an alleged multiple offender's case.

A case that was recently decided by the Appellate Division in New Jersey, State v. Weil (decided July 5, 2011), outlines the PCR process and what is needed to seek relief from the courts.

Petitions for PCR must be filed in the court where the original conviction occurred. In a case called State v. Bringhurst, the Appellate Division stated that the time limit for filing a PCR petition in a DWI case could be relaxed from the general five year rule, since the prior conviction would "be of no moment unless and until there was a subsequent DWI conviction." If the prior conviction is more than five years old, the defendant has to establish that any delay in filing was not the result of neglect or some other disqualifying reason. In relaxing the time limitation, the court will consider the extent and cause of the delay, whether there is any prejudice to the State, and the importance of the claim.

The petitioner has to allege facts to establish relief in a written petition. Specifically, the petitioner has the burden of proving that he or she did not have notice of the right to counsel in the prior case. He has to demonstrate that he was prejudiced by being unaware of those rights, and if indigent, would have benefited from the notice by seeking counsel. A non-indigent defendant additionally must show that the lack of notice affected the outcome of the case.

The defendant in the recently decided Weil case was not successful in her argument to obtain relief. There was evidence that she did receive notice of her right to counsel in her 1994 case based on notations on the original tickets that were maintained by the original municipal court. She also did not explain why she waited sixteen years to seek relief.

It is critical to hire a qualified New Jersey DWI defense lawyer to fully review all aspects of your case, including your prior convictions. Failure to review prior convictions can result in significant lost opportunities in the present pending matter.