BONNIE'S BRIDGE, CHERRY HILL, CAMDEN COUNTYNew Jersey laws dealing with driving while intoxicated (DWI) are consistent throughout the state, meaning that prosecutors in each county in New Jersey must meet the same burden of proof to obtain a conviction. A review of municipalities around the state by NJ.com, however, has found that some local police departments are much more assertive in enforcing these laws. New Jersey law allows municipalities to regulate the sale of alcoholic beverages, including by prohibiting their sale within city limits. These “dry towns,” according to the NJ.com report, have some of the highest DWI arrest rates in the state. Differences in arrest rates can have many possible causes, including prioritization by local law enforcement.

A person commits the offense of DWI if they operate a motor vehicle while impaired by alcohol or drugs, or while they have a blood alcohol concentration (BAC) of 0.08 percent or higher. Police and prosecutors often prefer to prove impairment with BAC evidence, since a BAC above the “legal limit” of 0.08 percent creates a presumption of intoxication. They can also meet their burden of proof with evidence of how a driver behaved, appeared, or smelled at the time police pulled them over. During patrols, police may look for vehicles that are moving erratically, which could indicate impairment by a driver. Police are also allowed to operate roadside checkpoints for the purpose of checking motorists for common signs of intoxication. Each police department has wide leeway in setting enforcement priorities.

Businesses that serve or sell alcohol must have a license to do so. New Jersey law gives municipalities the authority to determine how many licenses, if any, to issue. A municipality might ban the sale of alcohol altogether, or it might prohibit retail sales while allowing restaurants to serve alcohol. New Jersey has 32 dry towns that prohibit alcohol sales to some extent. Most of these are located in the southern part of the state. Camden County is home to four dry towns:  Audubon Park, Collingswood, Haddon Heights, and Haddonfield.

paperworkIn order to convict someone of driving while intoxicated (DWI), New Jersey prosecutors must prove beyond a reasonable doubt that the person was impaired by alcohol or drugs. State law allows police to collect breath samples to test blood alcohol concentration (BAC) in suspected DWI cases. Police in New Jersey typically use a device known as an Alcotest, which analyzes breath samples provided by blowing into a tube. These devices require careful maintenance and calibration in order to produce reliable measurements. In October 2017, prosecutors in several New Jersey counties notified thousands of individuals with DWI convictions or pending charges that police may have mishandled BAC evidence in their cases. A specially appointed judge will determine whether any New Jersey DWI cases should be reviewed in light of this alleged misconduct.

New Jersey law creates an incentive for prosecutors to rely on BAC evidence. They can prove that a defendant was legally impaired through circumstantial evidence, such as an arresting officer’s testimony about a DWI defendant’s behavior and appearance. New Jersey’s DWI statute creates a presumption of impairment, however, when a defendant’s blood alcohol concentration (BAC) was 0.08 percent or higher at the time of, or within several hours of, their arrest. Penalties are also higher for first-time DWI convictions if the defendant’s BAC was 0.10 percent or greater.

The Alcotest device purports to measure the concentration of alcohol in a person’s blood by performing tests on samples of that person’s breath. This requires a certain amount of extrapolation using algorithms in the device’s programming. The device uses infrared technology and the process of electrochemical oxidation to test breath samples. This latter process is particularly sensitive to environmental factors like temperature and potential contaminants. The New Jersey Supreme Court’s 2008 decision in State v. Chun, in which we represented several appellants, established guidelines for the maintenance and calibration of these devices, as well as documentation to indicate when an Alcotest device was most recently serviced.

wildflowerNew Jersey’s driving while intoxicated (DWI) statute allows the state to prove that a defendant was impaired by alcohol with the results of blood alcohol content (BAC) testing. A BAC of 0.08 percent or higher creates a legal presumption of impairment. Police can determine BAC by testing a sample of breath, blood, or urine. Breath testing is considered to be the least intrusive. Blood and urine tests must follow the rules established by the Fourth Amendment for searches. A defendant can challenge the admissibility of BAC evidence by establishing a violation of their Fourth Amendment rights. A 2013 U.S. Supreme Court decision specifically addressed warrantless blood draws in DWI cases. The New Jersey Appellate Division cited that decision earlier this year in State v. Smijean, reversing a DWI conviction that involved BAC evidence from a warrantless blood draw.

Breath testing for BAC requires a person to blow into a tube attached to a testing device commonly known as a breathalyzer. Most New Jersey police departments use a device known as an Alcotest. Submission of a breath sample is mandatory for anyone who drives on a public road in New Jersey, and refusal to submit a breath sample upon request by law enforcement is a separate motor vehicle offense.

Since breath testing only requires blowing into a tube, it is not considered a “search” under the Fourth Amendment. Blood testing, however, is considered intrusive enough to fall under the Fourth Amendment’s prohibition on warrantless searches. Drawing a person’s blood therefore requires that person’s consent or a warrant issued by a judge. In a general sense, police may be able to conduct a search without a warrant if they can establish that “exigent circumstances” made it impractical to obtain a warrant first, usually because of the risk of loss or destruction of evidence. How this exception applies in DWI cases has been a matter of dispute.

EntrapmentIf you have been charged with alleged driving while intoxicated (DWI) in New Jersey, numerous different defenses are potentially available to you, depending on the facts of your particular case. The prosecution has the burden of proving guilt beyond a reasonable doubt. This means that they must present solid evidence of every element of the offense described in the DWI statute. New Jersey treats DWI as a traffic offense, and it is important to understand how DWI cases can differ from criminal cases as a result. Some defenses that are available in criminal prosecutions are not necessarily available in a DWI case. The New Jersey Supreme Court has held, for example, that the “entrapment” defense is not available to DWI defendants.

“Entrapment” involves a claim that law enforcement encouraged or induced a defendant to commit an offense they would not otherwise have committed. The U.S. Supreme Court stated in a 1992 decision, Jacobson v. United States, that the government cannot “originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime” in order to prosecute that crime. Courts place an emphasis on the defendant’s “innocence.” In order to overcome an entrapment defense, prosecutors must prove beyond a reasonable doubt that the defendant was already “disposed to commit the criminal act” before government agents came to them with the idea.

The New Jersey Supreme Court considered whether a defendant charged with DWI could raise a “quasi-entrapment” defense in State v. Fogarty, also in 1992. At the very beginning of its decision, the court describes the defense theory as “novel.” According to the opinion, the defendant was attending a wedding reception on the night of his arrest. Since he had been drinking, he had arranged for someone to drive him home and for someone else to drive his truck home.

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Flaming cocktailsIndividuals charged with driving while intoxicated (DWI) in New Jersey municipal courts can raise numerous possible defenses against the state’s charges. The Fourth Amendment to the U.S. Constitution, for example, allows defendants to challenge the basis for a traffic stop that led to a DWI charge. If a court finds that the stop violated the defendant’s rights, it must suppress any evidence obtained as a result of that stop. This usually results in the dismissal of the case. Defendants can also challenge the validity of the state’s evidence, such as Alcotest results. Some defenses that are available in criminal cases in New Jersey may also be available in DWI cases, but since New Jersey treats DWI as a motor vehicle offense, their availability is limited. A recent decision by a Texas court shows how the defense of “involuntary intoxication” could apply in a DWI case. New Jersey, however, does not currently allow this defense.

The New Jersey DWI statute defines the offense as operating a motor vehicle while “under the influence” of alcohol or drugs, or with blood alcohol concentration (BAC) of 0.08 percent or more. Most criminal statutes require proof that a defendant had a certain mental state, such as an intent to commit that specific offense or recklessness as to the criminal nature of their actions. This is known to lawyers as mens rea. New Jersey’s DWI statute makes no mention of intent or any other mental state. While court decisions have delved further into the issue of mens rea in DWI cases, the statute only requires proof that a defendant was intoxicated or impaired.

The affirmative defense of “involuntary intoxication” allows a defendant to challenge the “intent” element of many criminal offenses by showing that the intoxication was either “not self-induced” or was “pathological.” The statute defines “pathological” as being far in excess of what would ordinarily be expected for the amount of intoxicant consumed by the defendant. Since it is an affirmative defense, the defendant has the burden of proving it by “clear and convincing evidence.” This is a lesser burden of proof than the state’s burden of proving guilt “beyond a reasonable doubt.”

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soap bubbleNew Jersey’s driving while intoxicated (DWI) statute allows prosecutors to use several methods to try to prove that a defendant was too impaired to operate a vehicle. One of these methods requires test results showing that a defendant’s blood alcohol content (BAC) was 0.08 percent or higher, the so-called “legal limit” for DWI. This is the preferred method for most prosecutors, and New Jersey law helps facilitate the collection of BAC evidence. Refusal to submit to a breath test is a separate traffic offense alongside DWI, punishable by a fine and license suspension. Courts have expanded the scope of the refusal statute beyond merely refusing even to attempt to provide a breath sample. The Alcotest device used by New Jersey police to measure BAC requires a sizeable sample, and a refusal charge can result from not trying hard enough. The New Jersey Appellate Division reviewed this sort of situation recently in its decision in State v. Hernandez.

Under New Jersey law, anyone operating a motor vehicle on a public road is deemed to have given their consent to providing a breath sample to police upon suspicion of DWI. This “implied consent” law overrides any concerns about Fourth Amendment rights against warrantless searches or Fifth Amendment rights regarding testifying against oneself. A conviction for a first refusal offense can result in a license suspension for seven months to one year. For a second offense, the period of suspension is two years. A 10-year license suspension comes with a third or subsequent conviction. Fines range from a minimum of $600 for a first offense to a maximum of $2,000 for a third or subsequent offense.

New Jersey police use a device known as the Alcotest 7110 MK III-C to measure BAC. A New Jersey Supreme Court decision from 2008, State v. Chun, established various standards and procedures for the Alcotest. The device requires a minimum sample size to ensure consistency and, to the greatest extent possible, accuracy. Most people must breathe into the device enough to produce 1.5 liters of air, although for women over the age of 60, this minimum amount is lowered to 1.2 liters. They must also breathe into the device for at least four and a half seconds, something that may not be possible for some people. Courts have attempted to distinguish between people who are incapable of providing a sufficient breath sample and those who could provide a sample but do not do so.

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Unbalanced scalesDriving while intoxicated (DWI) is a traffic offense, rather than a criminal offense, under New Jersey law. Most—although not all—of the protections offered in criminal prosecutions by the U.S. and New Jersey Constitutions apply to DWI cases. The guarantee of due process in legal proceedings, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, is one of the most important protections. New Jersey’s DWI statute creates a legal presumption of intoxication for anyone whose blood alcohol content (BAC) is 0.08 percent or higher. The New Jersey Appellate Division discussed whether this violates due process back in 1959, in State v. Protokowicz. Despite its age, the case still has relevance to DWI defense today.

The term “due process” generally means the right to fair legal proceedings. The U.S. Constitution states twice that no one may “be deprived of life, liberty, or property, without due process of law.” Courts have interpreted the Fifth Amendment’s Due Process Clause to apply to the federal government, while the Fourteenth Amendment applies to the states. The New Jersey Constitution also provides for due process in Article I, section 1, stating that “[a]ll persons…have certain natural and unalienable rights,” including “those of enjoying and defending life and liberty, [and] of acquiring, possessing, and protecting property.”

The New Jersey DWI statute defines the offense in two ways. A person commits the offense if (1) they “operate[] a motor vehicle while under the influence” of alcohol or drugs, or (2) drive with a BAC of 0.08 percent or higher. In the second type of DWI, BAC evidence creates a presumption that a defendant was “under the influence.” State laws requiring drivers to submit to breath testing facilitate the collection of BAC evidence. Since this presumption seems to put a DWI defendant at a disadvantage from the very beginning, does it pose due process problems?

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bicycle on bridgeOn multiple occasions, prosecutors in this state have charged people with driving while intoxicated (DWI) for operating a bicycle while allegedly under the influence. This raises an interesting question about the scope of DWI law. Courts have reached different conclusions about whether operating a non-motorized bicycle—meaning one that is solely powered by a person’s own effort—constitutes DWI under New Jersey law. The Appellate Division does not appear to have ruled on the question directly, but trial court decisions point to the conclusion that the DWI statute only applies to motorized vehicles.

The New Jersey statute defining DWI specifically states that an offense occurs when a person is operating a “motor vehicle.” State law defines a “motor vehicle” to include most vehicles “propelled otherwise than by muscular power.” This definition excludes trains and other rail-based vehicles, as well as “motorized bicycles.” The law defines a “motorized bicycle” as a pedal bicycle that can be assisted by a motor that allows it to travel at a maximum of 25 miles per hour—commonly known as a moped. A separate statute addresses operating a motorized bicycle while under the influence of alcohol or drugs, and it imposes the same penalties as in a DWI case involving a motor vehicle.

Several New Jersey trial courts have addressed the question of whether the DWI statute applies to bicycles. Since none of these cases resulted in an Appellate Division ruling, they are not binding on other courts. They may still be persuasive, though. In 1982, the Superior Court in Somerset County held in State v. Tehan that the DWI statute applies to bicycles, but only to a partial extent. Bicycle riders are “subject to all of the duties applicable to the driver of a vehicle,” the court noted. It also found that, since riding a bicycle does not require a license, the driver’s license suspension provisions of the DWI statute do not apply to bicycles. It affirmed the municipal court’s guilty verdict and the fine, but it reversed the license suspension.

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AppealEvery defendant charged with driving while intoxicated (DWI) in New Jersey is entitled to a trial by a municipal court judge. If a defendant believes that the municipal court has made an error in its verdict, they can appeal to the New Jersey Superior Court, Law Division. This court has the authority to conduct a new trial. From there, a defendant can appeal to the Appellate Division, and then to the New Jersey Supreme Court. These higher courts, however, are limited in their ability to review or reverse the factual findings of the lower courts, and they are often hesitant to second-guess a trial court’s conclusions. The Appellate Division reviewed these limitations in a March 2017 decision.

Municipal courts in New Jersey have jurisdiction over motor vehicle offenses, including DWI. A DWI case is assigned to the municipal court of the city, borough, town, or other municipality where the offense allegedly occurred. At trial, the municipal judge hears the arguments from the prosecution and the defendant, reviews the evidence, and renders a verdict. This is generally the only time the parties may present live witnesses, giving the municipal judge a unique perspective on the case.

According to Rule 3:23 of the New Jersey Rules of Court, a defendant has the right to appeal a DWI conviction in municipal court to the Law Division. This court may conduct a trial de novo, meaning that it is not bound by the municipal court’s factual or legal findings, and it may consider the case completely anew. That said, the Law Division typically only has access to the record of the proceedings in the municipal court. This includes all of the evidence presented at trial, but it does not include whatever understanding of the case may come from watching the testimony of witnesses in person. For this reason, courts are often unwilling to upset a municipal judge’s factual findings without evidence of a significant error.

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Las Vegas signThe statute defining driving while intoxicated (DWI) in New Jersey establishes two ways for prosecutors to prove guilt. First, they can prove beyond a reasonable doubt that a defendant “operate[d] a motor vehicle while under the influence of” alcohol or drugs. Alternatively, they can show that a defendant operated a motor vehicle while their blood alcohol content (BAC) was 0.08 percent or higher. Despite the common name of the offense, however, the statute says nothing about “intoxication.” It also omits another word commonly used in discussions of DWI, “impairment.” All the way back in 1964, the New Jersey Supreme Court ruled in State v. Johnson that a defendant’s actual impairment is not an essential element of DWI, and the ability to drive safely anyway is not a defense.

Operating a motor vehicle with a BAC of 0.08 percent or higher is sometimes known as DWI per se, since the BAC evidence effectively creates a legal presumption of guilt. A defendant can challenge BAC evidence by questioning the accuracy of the testing device. State law requires police to follow specific procedures when administering a breath test, and the device requires regular maintenance and careful calibration. A failure by police to follow proper procedures can result in the exclusion of test results at trial.

A DWI conviction is possible without BAC evidence, or even with evidence that a defendant’s BAC was less than 0.08 percent, if the state provides evidence that the defendant exhibited signs of intoxication. This usually involves eyewitness testimony from police officers and others. Challenging this sort of evidence might require impeaching a witness’ credibility or providing a counter-narrative to the prosecution’s story. A defendant can also challenge the prosecution’s entire case if they can show that the original traffic stop or arrest violated their Fourth Amendment rights.

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