Defending against a charge of alleged driving while intoxicated (DWI) in New Jersey requires careful evaluation of every part of the state’s case, which is why it is often wise to retain a dedicated New Jersey DWI lawyer if you are in such a situation. The state has the burden of proving guilt beyond a reasonable doubt on every element of the offense of DWI. The job of a defendant and their counsel is to challenge the state’s evidence and legal arguments. The Fourth Amendment to the U.S. Constitution prohibits police from conducting searches and seizures without a warrant, but the courts have identified numerous exceptions. A police officer may be able to justify a traffic stop if they can demonstrate “reasonable suspicion” of unlawful activity by the driver. In early 2018, the New Jersey Supreme Court rejected the state’s reasonable suspicion argument in State v. Sutherland. The court held that the officer’s suspicion was not “objectively reasonable.” It remanded the case to the Appellate Division to resolve the state’s alternative argument that the stop was justified by the “community caretaking” doctrine.

New Jersey’s DWI statute broadly prohibits the operation of a motor vehicle “while under the influence” of alcohol or drugs. It allows the state to prove impairment by alcohol in two ways: with evidence that a defendant’s blood alcohol concentration (BAC) was 0.08 percent or higher, or with other evidence indicating impairment. The statute identifies various penalties based on factors like a defendant’s BAC and their number of prior convictions. It does not make any mention of the manner in which police come to suspect that a driver is impaired.

A police officer may briefly detain a person, such as in a traffic stop, without a warrant if they have reasonable suspicion of criminal or other unlawful activity. The U.S. Supreme Court affirmed this in Terry v. Ohio in 1968. The court held that an officer’s suspicion must be based on “specific reasonable inferences…in light of his experience,” and not on an “inchoate and unparticularized suspicion or ‘hunch.’” In the context of a DWI case, an officer might testify that they witnessed a defendant driving erratically. A traffic stop that leads to a DWI charge does not have to begin with an officer’s suspicion of DWI. A police officer could stop a driver for another suspected traffic violation, such as running a red light, and then discover evidence of DWI. This becomes complicated when an officer is mistaken about traffic law.
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A conviction for driving while intoxicated (DWI) in New Jersey can lead to driver’s license suspension, fines and surcharges, and jail time. It can also have legal consequences beyond those established by the state’s motor vehicle laws. It is important to understand all of the ways a DWI charge or conviction can impact your life. The New Jersey Appellate Division recently ruled on an appeal from a decision by the Division of Child Protection and Permanency (DCPP) to place an individual on the state child abuse registry, partly because of an alleged DWI. The decision in DCPP v. H.V. addresses issues commonly found in DWI cases, such as blood alcohol content (BAC) and observations of outward signs of intoxication.

Under New Jersey law, DWI is a motor vehicle offense punishable by jail time, a fine, and license suspension. A first offense involving BAC of at least 0.08 percent, but less than 0.10 percent, has the least potential penalty, which may include a fine of $250 to $400 and up to thirty days in jail. A third or subsequent offense, regardless of BAC, carries the greatest possible penalty, including a $1,000 fine, a minimum term in county jail of 180 days, license suspension for ten years, and mandatory use of an ignition interlock device. Defendants may also be subject to surcharges payable to the state, based on factors like the number of prior offenses.

The H.V. case involves a case of suspected DWI that led to an investigation by the DCPP. State law defines “neglect of a child,” in part, as “failure to do…any act necessary for the child’s physical…well-being.” It requires “any person having reasonable cause to believe” that a child’s parent or guardian has committed abuse or neglect to make a report to the DCPP. Within twenty-four hours of receiving such a report, the DCPP must initiate an investigation. Within seventy-two hours, it must forward the report to the child abuse registry maintained at the division’s headquarters.
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New Jersey DWI (driving while intoxicated) and related offenses are not considered criminal offenses. Instead, they are classified as traffic offenses, meaning that the maximum penalties, while still potentially quite onerous, are generally not as severe as in many criminal cases. A case involving alleged DWI can include criminal charges when injury or death occurs, but a defendant may also be subject to criminal prosecution merely for driving while their license is suspended (DWLS) when they have prior DWI-related convictions. The New Jersey Superior Court, Appellate Division recently considered what prior convictions are necessary for the criminal DWLS statute to apply in State v. Dougherty.

New Jersey’s criminal DWLS statute imposes a mandatory minimum sentence of 180 days in jail. The statute identifies two scenarios based on the reason for the license suspension and the defendant’s prior record.
1. An ordinary DWLS charge can become a criminal charge if the license suspension is because of a conviction for first-time DWI or refusal to submit to breath testing, and the defendant has a prior conviction for DWLS during the same period of license suspension. This provision appears to require two prior convictions: one for DWI or refusal, and one for DWLS.
2. The criminal statute may also be invoked if the reason for the license suspension is a second or subsequent DWI or refusal conviction. This provision does not require a prior conviction for DWLS, but does require multiple prior DWI or refusal convictions.

The defendant in Dougherty was charged with criminal DWLS under the second scenario identified by the statute. He was convicted of DWI in August 2015, resulting in a three-month license suspension. In November 2015, he was convicted of refusal and sentenced to a seven-month license suspension. A police officer pulled him over while driving in December 2015, during the suspension period resulting from the refusal conviction. A grand jury indicted him for criminal DWLS.
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In New Jersey, driving while intoxicated (DWI) and most related offenses are not considered criminal in nature. They are instead classified as traffic or motor vehicle offenses. Driving while license suspended (DWLS) is usually a motor vehicle offense, punishable by a fine, driver’s license suspension, and potential revocation of vehicle registration. In certain circumstances, however, DWLS is a criminal offense. Prosecutors may charge a defendant with both forms of DWLS for a single alleged incident. A defendant convicted of both offenses recently argued on appeal that the trial court should have merged the penalties. The New Jersey Appellate Division agreed earlier this year in State v. Koerner. While it affirmed the conviction, it remanded the case to the lower court for resentencing.

Under New Jersey’s motor vehicle laws, a first DWLS offense carries a fine of $500. If the offense occurs during a period of license suspension for a DWI or refusal conviction, the penalty also includes vehicle registration revocation. For a second offense, the penalty includes a $750 fine and up to five days in jail. The penalty for a third or subsequent offense is a $1,000 fine and up to ten days in jail. If a second, third, or subsequent offense occurs within five years of a prior DWLS conviction, the defendant is also subject to registration revocation. Municipal courts typically hear motor vehicle cases.

The state can charge a person with criminal DWLS in two situations: (1) when the individual has a prior traffic conviction for DWLS during a period of license suspension resulting from a DWI or refusal conviction; or (2) when the alleged offense occurs while the individual’s license is under suspension for a second of subsequent DWI or refusal conviction. In both cases, it is a crime of the fourth degree, with a mandatory minimum sentence of 180 days in county jail. New Jersey’s sentencing statute allows sentences of up to eighteen months for crimes in the fourth degree. The New Jersey Superior Court, Law Division is the venue for most criminal cases.
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According to recent media reports, the number of convictions for driving while intoxicated (DWI) in New Jersey is decreasing, at least with regard to cases involving alcohol. The decline reportedly might be due to an increase in DWI cases involving marijuana and other controlled substances. New Jersey law provides no per se standard for impairment by marijuana or other drugs that is comparable to the standard for alcohol. A bill currently pending in the New Jersey Assembly, A2776, would establish a per se standard for marijuana in DWI cases. This bill, if enacted, would probably present both benefits and drawbacks for New Jersey DWI defendants.

New Jersey law creates a presumption of impairment if a defendant’s blood alcohol content (BAC) is at least 0.08 percent. This is often known as DWI per se. Since no similar standard exists for marijuana and other drugs, prosecutors must rely on testimony from police officers who have received training as “drug recognition experts” (DREs). Typically, a DRE-certified officer observes a defendant during or shortly after their arrest, and then forms an opinion of which substance(s) they took. The use of DRE testimony in court presents problems for defendants, given the wide gulf that often exists between the questionable scientific basis of their training and the weight that courts often give to police officers’ testimony.

Tests for marijuana look for specific compounds in the blood. Delta 9-tetrahydrocannabinol (THC) is the active component of marijuana, but it can dissipate in the bloodstream within a few hours. As the body metabolizes THC, it produces a form of carboxylic acid known as delta 9-carboxy-THC (THC-COOH) as a metabolite. The presence of THC-COOH can determine if someone has recently used marijuana, but it is a less accurate method of establishing actual impairment.

Police, when investigating suspected driving while intoxicated (DWI) cases in New Jersey, must obtain a warrant, or a suspect’s consent, to collect blood samples under the Fourth Amendment to the U.S. Constitution. The “exigent circumstances” exception allows warrantless searches when taking the time to obtain a warrant would create a significant risk that evidence will be lost or destroyed. New Jersey courts currently look at the “totality of the circumstances” when considering warrantless blood draws. A recent ruling by the New Jersey Supreme Court, State v. Zalcberg, considers this question in light of recent changes to the law and police officers’ accompanying uncertainty.

The New Jersey DWI statute allows the state to prove impairment based solely on a defendant’s blood alcohol content (BAC), making this sort of evidence very important to the state. Time is an important factor, since alcohol breaks down in the bloodstream over time. The U.S. Supreme Court ruled that the gradual dissipation of alcohol, by itself, is not an exigent circumstance for Fourth Amendment purposes in 2013’s Missouri v. McNeely.

In 2015’s State v. Adkins, the New Jersey Supreme Court adopted a rather narrow view of McNeely’s effect on New Jersey DWI cases. Cases decided after McNeely, including cases that were “in the pipeline” at the time McNeely was decided, are bound by that precedent. New Jersey municipal and trial courts could, however, give “substantial weight” to dissipation in determining whether the exigent circumstances should apply. While dissipation could not qualify as an exception to the warrant requirement on its own, the court effectively said that it was a major circumstance among the totality of the circumstances. This became important in Zalcberg.

New Jersey’s driving while intoxicated (DWI) statute allows law enforcement officials to obtain breath samples, for the purpose of measuring a suspect’s blood alcohol concentration (BAC), without a warrant. The Fourth Amendment to the U.S. Constitution requires police to obtain a warrant, supported by probable cause, before conducting a search. Multiple courts, however, have held that the collection of breath samples falls under an exception to the warrant requirement. One way to explain why a warrant is not required is that people do not have a reasonable expectation of privacy in the contents of their breath. This may seem a bit trite, but it makes some sense when compared to another method of measuring BAC, blood testing. Collection of a blood sample is indisputably invasive, so courts have held that a warrant is required in most cases.

Police do not have to obtain a warrant before conducting a search, according to a long line of court decisions, if “exigent circumstances” exist that risk the imminent loss or destruction of evidence. If, for example, a police officer has reason to believe that a person inside a residence is about to destroy contraband, such as by flushing it down the toilet, courts have held that they may enter the residence for the purpose of securing the contraband. The authority of police officers to search a vehicle without a warrant, known as the vehicular exception, is based on the same principle as exigent circumstances. Since a car is mobile, waiting to obtain a warrant risks the suspect fleeing the scene. An officer must still have probable cause to believe that the car contains contraband or evidence of a crime, but they do not necessarily have to have a warrant.

Drawing blood from a DWI suspect without a warrant, in order to test their BAC, has been justified by exigent circumstances in the past. The U.S. Supreme Court allowed this in its ruling in Schmerber v. California in 1966. The court significantly limited this practice, however, in a 2013 ruling, Missouri v. McNeely. Prosecutors had argued that the human body’s natural process of metabolizing alcohol, meaning that a person’s BAC steadily decreases over time, was an exigent circumstance allowing a warrantless blood draw. The Supreme Court rejected this argument. While it may still be possible to justify a warrantless blood draw based on exigent circumstances, the breakdown of alcohol in the bloodstream cannot, by itself, serve that purpose.

New Jersey law allows prosecutors to establish that a defendant charged with driving while intoxicated (DWI) was legally impaired by showing that the amount of alcohol in their blood around the time of their arrest was above a minimum amount. Most police departments in New Jersey use a device known as an Alcotest to determine BAC by testing a sample of a suspect’s breath. In order to ensure that a device gives accurate readings, it must have regular maintenance and calibration. A 2008 New Jersey Supreme Court decision, State v. Chun, established standards and procedures that police must follow regarding both the maintenance of the device and the manner in which breath samples are obtained. In 2016, a State Police Sergeant was accused of submitting false Alcotest maintenance reports. This led to an order staying all pending New Jersey DWI cases that might involve evidence obtained from devices serviced by this officer. A recent report from a court-appointed special master stated that the improper calibration “undermine[s] or call[s] into question the scientific reliability of breath tests performed” with those devices.

An individual is presumed to be legally impaired, for the purpose of the New Jersey DWI statute, if their BAC is 0.08 percent or more. Prosecutors have used a variety of devices over the years, often collectively known as “breathalyzers,” to measure BAC from breath samples. New Jersey police began using the Alcotest device in the late 1990’s and early 2000’s. By the mid-2000’s, most police departments around the state were using this device. Since a defendant’s BAC measurement is one of the state’s most important pieces of evidence, confirming that the Alcotest reliably gives accurate readings is critically important. We were involved in the Chun case, which resulted in a series of standards for maintaining and calibrating Alcotest devices, and procedures for reporting on the devices’ regular maintenance.

The chemical processes that the Alcotest device uses to measure BAC require careful calibration. The device uses “simulator solutions” as controls, which must be kept within a specified temperature range. The individual performing the calibration must use a certain type of thermometer to measure the temperatures of the solutions. If any of the solutions are not within the required temperature range, the device may not give accurate readings. Chun states that maintenance reports, showing that calibrations were performed within these guidelines, must be made available to defendants or their counsel.
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In 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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A 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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