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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New 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.The 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.

Other states, including New Jersey, rely on testimonial evidence to determine whether a drug impaired a defendant’s ability to drive. The New Jersey Supreme Court affirmed a conviction for DWI based on impairment by marijuana in State v. Bealor in 2006. The court held that, while lay opinions as to intoxication by alcohol may be admissible, they are not necessarily admissible for other drugs because the signs of impairment by drugs are not as well-known to the public as the signs of drunkenness. In this case, the arresting officers testified that the defendant’s “eyes were bloodshot and glassy,” that he moved slowly and had slurred speech, and that the smell of “burnt marijuana” emanated from the car. Tests of the defendant’s urine showed the presence of marijuana. These two pieces of evidence, the court held, were enough to support the conviction, even without expert witness testimony.

New 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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