dui lawIn order to prove that a defendant is guilty of driving while intoxicated (DWI) in New Jersey, prosecutors must establish multiple elements beyond a reasonable doubt. This includes proving that the defendant was operating a motor vehicle while impaired by drugs or alcohol. New Jersey courts have given prosecutors leeway regarding this element, ruling that police do not have to witness a DWI suspect actually driving. Instead, prosecutors may use circumstantial evidence. The New Jersey Appellate Division recently reviewed this standard of proof in an appeal brought by a defendant found sleeping in his vehicle. The court’s decision in State v. Capers offers a brief but useful overview of this element of the DWI offense.

The New Jersey DWI statute states that a person commits an offense when they “operate[] a motor vehicle while under the influence of” alcohol or drugs. The bulk of the text of this section is devoted to blood alcohol content (BAC) and the various penalties for convictions. The Legislature devoted very little space to the actual operation of a motor vehicle. One might think, given that the state must prove every element of an offense beyond a reasonable doubt, that courts would require actual eyewitness testimony about the defendant’s operation of a vehicle, or a defendant’s admission to driving. The courts, however, have taken a very expansive view of how prosecutors can prove that a defendant operated a vehicle.

A 2005 decision by the Appellate Division, State v. Ebert, specifically holds that “[a]ctual operation is not required to satisfy the element” of the DWI statute. The court identified three methods of proving operation of a vehicle:
1. Testimony about “actual observation of the defendant driving while intoxicated”;
2. Testimony regarding “observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated”; or
3. A “defendant’s admission” to operating a vehicle under the influence.
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automotive-car-race-racing-149167A conviction for driving while intoxicated (DWI) in New Jersey results in mandatory driver’s license suspension. The duration of the suspension varies based on the number of prior DWI convictions, including convictions from other states. New Jersey has adopted the Interstate Driver License Compact (IDLC), which provides for “reciprocal recognition” of driver’s licenses, as well as the applicability of other state’s laws when considering prior convictions for certain traffic offenses. In order for a DWI conviction in another state to count as a prior conviction in New Jersey, the other state’s statute must be substantially similar to New Jersey law. A defendant in a license suspension case recently appealed a finding by the state government that counted a conviction under New York law as a prior conviction. The New Jersey Appellate Division’s ruling in Markowiec v. N.J. Motor Vehicle Comm’n reviewed the standards for determining when an out-of-state conviction counts under New Jersey law.

A first DWI offense in New Jersey includes a three-month suspension. If a first-time DWI defendant has blood alcohol concentration (BAC) of at least 0.10 percent, however, the statute requires suspension for seven months to one year. A second offense includes a two-year license suspension, regardless of BAC. For a third or subsequent offense, the period of license suspension is ten years.

The IDLC states that certain out-of-state convictions, including DWI, may be considered by New Jersey officials for the purpose of license suspension or revocation. The DWI statute includes a similar provision, but it also includes an exception. A defendant can have an out-of-state conviction excluded if they “can demonstrate by clear and convincing evidence” that the out-of-state offense arose from “a violation of a proscribed blood alcohol concentration of less than 0.08%.” This exception was the basis for the defendant’s appeal in Markowiec.
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check boxesNew Jersey law imposes a range of penalties for driving while intoxicated (DWI) and related offenses, including license suspensions, fines, and the possibility of jail time. On top of that, the state Motor Vehicle Commission (MVC) assesses surcharges in New Jersey DWI cases. These are monetary penalties that must be paid separately from any fines imposed by a municipal court. The amount of the surcharge can be substantial, particularly for someone with multiple convictions, so understanding and preparing for a surcharge obligation is an essential part of defending against DWI charges. New Jersey considers DWI to be a “petty” offense, contained in the state’s motor vehicle laws rather than its criminal statutes. Courts have held that surcharges do not enhance the penalties for DWI to the point that it should be considered a criminal offense.

The New Jersey DWI statute identifies an increasing range of penalties. A first offense involving a blood alcohol content (BAC) of at least 0.08 percent, but less than 0.10 percent, carries the lowest maximum penalty. A third or subsequent offense carries the greatest potential penalty, including up to six months in jail, a fine of up to $1,000, and a license suspension of 10 years. The possible penalties for refusal to submit to breath testing also increase based on prior convictions, and they include both fines and a license suspension. A conviction for either offense includes a $100 surcharge payable to a Drunk Driving Enforcement Fund managed by the state, but this is not the only surcharge payable in DWI and refusal cases.

The New Jersey Automobile Insurance Reform Act of 1982 created a surcharge system under the MVC. It applies to DWI and refusal offenses occurring in New Jersey on or after February 10, 1983, and to comparable out-of-state offenses occurring on or after January 26, 1984. The amount of the surcharge has not changed since that time. The surcharge for a first or second DWI or refusal conviction is $3,000, payable in three annual installments of $1,000. For a third or subsequent conviction, the surcharge is $4,500, payable in three annual $1,500 payments. If a driver is convicted of both DWI and refusal based on a single arrest, they must only pay one surcharge. Private insurance companies may also assess their own surcharges after DWI or refusal convictions.

New Jersey’s driving while intoxicated (DWI) statute is not limited to impairment due to alcohol. The text of the statute also includes “narcotic, hallucinogenic or habit-producing drug[s]” as substances that could cause impairment. The statute specifies a measurable amount of alcohol in one’s system that creates a presumption of impairment, but it does not do the same for any other drugs. This requires prosecutors to rely largely on eyewitness evidence from arresting officers, who may or may not have training in recognizing the signs of impairment by specific substances. If the alleged substance is illegal under state or federal drug laws, this might assist prosecutors. As more and more states pass laws allowing the use of marijuana for medical or recreational purposes, though, the issue is becoming more complicated. New Jersey may consider legislation to allow recreational marijuana use later in 2018, so law enforcement will have to address this issue soon.

Delta-9-THCThe New Jersey DWI statute establishes two methods of proving impairment. One method, sometimes known as “per se DWI,” presumes impairment if a defendant’s blood alcohol content (BAC) was at least 0.08 percent soon after they were allegedly operating a motor vehicle. The “implied consent” statute authorizes police to collect breath samples from anyone driving on New Jersey roads upon suspicion of DWI, and it makes refusal a separate traffic offense. Blood and urine samples may also indicate BAC, but these usually require a warrant or consent. The lack of any statutory guidelines for any drug other than alcohol means that prosecutors must pursue the other form of DWI, which requires proof of driving “while under the influence” of any of the list of substances mentioned earlier. Unlike BAC levels, this is a much more subjective question.

Some states have laws or regulations that specify an amount of marijuana, or other drugs, in one’s system that creates a presumption of impairment. For marijuana, the measurement is in nanograms of THC, the active component of marijuana, per milliliter of blood. Colorado, which was the first state to allow recreational use of marijuana, has set a limit of five nanograms per milliliter. In Pennsylvania, the “legal limit” for marijuana is one nanogram per milliliter. A debate is ongoing among scientists as to whether these numbers have any useful meaning with regard to impairment.

lettersNew Jersey’s driving while intoxicated (DWI) law allows police and prosecutors to establish that a person was legally impaired by alcohol or drugs in a variety of ways. This includes testimony from arresting officers about a defendant’s appearance and behavior, such as an odor of alcohol, bloodshot eyes, slurred speech, and so forth. Police may ask a driver to perform one or more field sobriety tests (FSTs) in order to assess their condition and establish probable cause for an arrest. The federal government has recognized three “standard” FSTs, but New Jersey police may use other tests in DWI investigations. New Jersey courts may accept those tests as evidence, even though their reliability is highly questionable.

Standard Field Sobriety Tests

The National Highway Traffic Safety Administration (NHTSA) has established a Standardized Field Sobriety Test (SFST) battery consisting of three tests. Each test has standard instructions for police officers to deliver to drivers, as well as objective factors that indicate the possibility of impairment. At the same time, each test has serious shortcomings that make their reliability above average at best. The three tests are the “one-leg stand,” the “walk and turn,” and the horizontal gaze nystagmus (HGN).

The non-standard FSTs do not have these sorts of objective indicators. Instead, they rely to a great extent on the individual officer’s interpretation of how an individual performs. New Jersey courts may still accept non-standard FSTs as evidence, but they should not give them nearly as much weight as the SFST battery.
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drugsNew Jersey’s driving while intoxicated (DWI) statute does not limit the offense to alcohol. It also includes any “narcotic, hallucinogenic or habit-producing drug” that might impair one’s ability to drive. The statute makes proving impairment by alcohol rather easier for the state by identifying a specific level of blood alcohol content (BAC)—0.08 percent or above—that creates a legal presumption of intoxication. In cases in which police suspect impairment by something other than alcohol, or in which the BAC is below the legal limit, but they still suspect intoxication of some sort, they may bring in a “drug recognition expert” (DRE) to evaluate the suspect. DREs receive training in identifying signs of impairment by various drugs, but both their methodology and the scientific validity of their evaluations remain questionable. In fact, it is junk science that is less than 50% reliable — less reliable than a flip of a coin.

Prosecutors must prove that a defendant in a DWI case was legally impaired. Proving that the defendant’s BAC was at least 0.08 percent, based on a breath, blood, or urine test, typically satisfies this requirement. This evidence is not always available, or prosecutors may allege that a defendant with BAC of less than 0.08 percent was nevertheless legally impaired. The testimony of the arresting officer might support this claim, such as if the officer witnessed slurred speech or other signs indicating intoxication. The mere fact that a driver was not operating their vehicle safely, however, is not enough for a DWI charge, since reckless driving is a distinct offense. DREs serve to provide additional support for the allegation that a driver was impaired. It is critical that the opinion of the DRE be challenged, as any opinion based on the DRE protocol is not based on scientifically validated testing.

The Los Angeles Police Department established the first DRE program in the 1970s, after numerous DWI suspects had a low BAC but still seemed impaired to police. The National Highway Traffic Safety Administration (NHTSA) later expanded the program to other states. The International Association of Chiefs of Police (IACP) has operated a nationwide program since 1989. Police officers receive training and certification through the IACP in the recognition of seven categories of drugs. New Jersey has over 400 certified DREs.

white flowerThe Fourth Amendment’s prohibition on unreasonable searches and seizures applies in all New Jersey driving while intoxicated (DWI) investigations and prosecutions. Defendants can raise Fourth Amendment challenges to numerous aspects of a DWI prosecution, such as a lack of reasonable suspicion before stopping their vehicle, or a lack of probable cause to initiate a DWI investigation. In cases in which police suspect an intoxicating substance other than alcohol, they may make use of a Drug Recognition Evaluator (DRE), who has received training in identifying signs of impairment by various drugs. A lawsuit filed last year challenges the use of DREs on Fourth Amendment grounds. While the case is pending in another state, it could affect future New Jersey DWI cases.

A private organization, the International Association of Chiefs of Police (IACP), operates the system for training and certifying DREs in cooperation with the National Highway Traffic Safety Administration (NHTSA). New Jersey has more than 400 police officers participating in the program. DREs use a 12-step process to assess whether a DWI suspect is under the influence of drugs. The IACP claims that this process is supported by scientific research, although this is subject to dispute. Part of the process, for example, involves field sobriety tests that are not part of the standard battery of tests approved by the NHTSA. A variety of medical conditions, physical impairments, and other factors could influence an individual’s performance on the various tests administered by a DRE as part of the 12-step process. A DRE’s expertise, for evidentiary purposes in court, usually does not extend beyond their specific training as a DRE.

The lawsuit mentioned above, Ebner v. Cobb County, involves three plaintiffs who, according to their complaint, were arrested, subjected to forced blood draws, and held for several hours “simply because a police officer had a hunch, based on deeply flawed drug-recognition training, that they might have been smoking marijuana.” None of them were under the influence of marijuana at the time of their arrests, they claim, and toxicology tests reportedly showed no traces of marijuana or its metabolites. They were all charged with DWI, but all charges were eventually dropped.

judgeUnder the laws of the state of New Jersey, driving while intoxicated (DWI) is a motor vehicle offense rather than a criminal offense. While a DWI conviction can result in serious penalties, including the possibility of jail time, the New Jersey court system does not deal with DWI cases in the same way it handles most criminal cases. A defendant in a New Jersey DWI case, for example, does not have the right to a trial by jury as described in the Sixth Amendment to the U.S. Constitution. DWI is considered a “petty” offense, and therefore it is not covered by all of the provisions of the Bill of Rights that apply in criminal cases. Most other rights, like the Fourth Amendment’s protection against unreasonable searches and seizures and the Sixth Amendment’s right to confront one’s accuser, still apply in DWI cases. Understanding which courts may consider DWI prosecutions and appeals, and how they are allowed to consider them, is important when planning a defense against DWI charges.

Municipal courts have original jurisdiction over DWI cases under Rule 7:1 of the New Jersey Rules of Court (NJROC). The municipal court judge handles all pretrial motions and other matters, and presides over the trial if one occurs. The judge will render a verdict and decide on a sentence. Several levels of appeal are available after a conviction in municipal court. If a person seeks post-conviction relief, however, NJROC 7:10-2 requires them to file a petition in the municipal court where the conviction took place.

Appeals from a municipal court conviction go to the Superior Court, Law Division. NJROC 3:23 requires a defendant to file a notice of appeal within 20 days of their conviction. The Law Division, upon receiving a transcript from the municipal court, may reverse the conviction and remand the case to the lower court, or it may conduct a trial de novo. While the Law Division is not bound by the municipal court’s findings of law or fact, it must “give due…regard to the opportunity of the [municipal court] to judge the credibility of the witnesses,” according to the New Jersey Supreme Court 1964 ruling in State v. Johnson.

In cases involving alleged driving while intoxicated (DWI) in New Jersey, prosecutors must prove all of the elements of the offense beyond a reasonable doubt. The New Jersey DWI statute states that a person commits an offense when they operate a vehicle “while under the influence” of drugs or alcohol. Prosecutors can prove this through testimony, such as by having the arresting officer testify about their observations of the defendant’s appearance or behavior, or through the defendant’s performance on field sobriety tests (FSTs). New Jersey evidence rules govern the ways prosecutors may introduce evidence of defendants’ performance on these tests at trial.

Accepted Field Sobriety Tests

Internuclear ophthalmoplegiaThe National Highway Traffic Safety Administration (NHTSA) has created standard procedures for three FSTs. New Jersey courts accept the use of two of the three tests in DWI investigations: the “One Leg Stand” and the “Walk and Turn”. HGN has not been held relaible to measure or check for intoxication, since there are 40 or more other causes of nystagmus in addition to intoxication.

PuzzledUnder the laws of New Jersey, driving while intoxicated (DWI) is a motor vehicle offense, rather than a criminal offense. A DWI proceeding still resembles a criminal case in many ways. Just as in a criminal case, prosecutors have the burden of proving every element of the offense of DWI beyond a reasonable doubt. DWI trials in New Jersey take place in municipal courts, with the municipal judge hearing the evidence and reaching a verdict. Prosecutors can introduce various forms of evidence, including certain actions and statements by a defendant that indicate a “consciousness of guilt.” Evidence that a defendant believed themselves to be guilty is not enough, by itself, for a conviction, but it can provide strong support for the state’s case. New Jersey courts have developed a series of rules regarding consciousness of guilt in criminal cases in general, and in DWI cases in particular.

Many criminal statutes include a particular mental state, known as mens rea, or “guilty mind,” as an element of the offense that the state must prove. Perhaps the most well-known example is the legal difference between murder and manslaughter. The offense of murder requires proof that a defendant acted with intent, meaning that they intended to kill their victim. Manslaughter involves reckless or negligent conduct by a defendant that results in someone’s death. Evidence of “consciousness of guilt” can support the state’s theory about a defendant’s “guilty mind.” The New Jersey Supreme Court reviewed some types of evidence of consciousness of guilt in a 1993 ruling, State v. Mann. Fleeing or escaping from custody for the purpose of “avoid[ing] accusation [and]…prosecution,” the court held, could be evidence of consciousness of guilt.

The New Jersey DWI statute’s definition of the offense makes no mention of mens rea. The state does not have to prove that a defendant intended to commit DWI, or even that they knew that they were impaired. Municipal judges may still infer consciousness of guilt from certain acts by DWI defendants. State law requires DWI suspects to provide breath samples to police, and it treats refusal as a distinct offense. In certain circumstances, refusal to submit to breath testing could also serve as evidence of consciousness of guilt. The New Jersey Appellate Division ruled that a defendant’s refusal was admissible as evidence in a DWI trial in State v. Tabisz in 1974. The New Jersey Supreme Court further affirmed this in 1987 in State v. Stever.