Much of New Jersey is currently shut down because of the global COVID-19 pandemic, which has hit this state particularly hard. In some ways, this has slowed enforcement of driving while intoxicated (DWI) laws, but in other ways, New Jersey police are even more on alert. Municipal courts across the state remain closed under an order from the New Jersey Supreme Court, so any pending or new cases must wait for court dates. The governor’s emergency orders, on the other hand, require people to limit their movement and interactions with others, in the hopes of slowing the spread of the virus. Police are on the lookout for violators. Recent news coverage of arrests during the coronavirus lockdown has also shown how DWI enforcement can involve both criminal and motor vehicle laws.

DWI During a Lockdown

The New Jersey DWI statute defines the offense as operating a motor vehicle while under the influence of alcohol or drugs, or while one has blood alcohol content (BAC) of 0.08 percent or higher. Police can pull drivers over if they have reasonable suspicion that they have committed a traffic offense, such as running a stop sign, failing to use a turn signal, or driving erratically. If additional evidence leads them to suspect DWI, such as the odor of alcohol or the driver’s appearance or behavior, they may conduct a further investigation. This could include field sobriety tests or breath testing to determine BAC.

The executive orders issued by the governor in response to the coronavirus pandemic have given police in New Jersey additional justifications for pulling over drivers. It is too early to know if this will lead to more DWI arrests, but it is a possibility. On March 21, 2020, the governor issued Executive Order 107, which instructs “all New Jersey residents [to] remain home or at their place of residence” unless they are performing essential tasks like going to work, seeking medical attention, or going to the grocery store. State law allows law enforcement to penalize violations of this order as a disorderly persons offense.

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The Fourth and Fifth Amendments to the U.S. Constitution protect people against misconduct by police and prosecutors. In cases of suspected driving while intoxicated (DWI), New Jersey police are bound by various decisions of the U.S. and New Jersey Supreme Courts that apply these constitutional rights. Police cannot stop a person’s vehicle, for example, unless they have reasonable suspicion of DWI or other unlawful activity, or as part of an established temporary DWI checkpoint. A decision issued by the New Jersey Superior Court, Appellate Division in September 2019 addressed a different situation, which is less common in DWI cases. Police entered the defendant’s home, questioned him there, and then arrested him for DWI. The court considered whether this violated his rights under the Fourth or Fifth Amendments.

New Jersey’s DWI statute provides prosecutors with two ways to prove that a defendant was under the influence of alcohol or other drugs. If breath, blood, or urine testing shows blood alcohol concentration (BAC) of 0.08 percent or higher, state law presumes the person to be intoxicated. Even without BAC evidence, though, police and others can testify about their observations of a defendant’s appearance, odor, and behavior, to establish intoxication.

The Fourth Amendment requires police to obtain search warrants based on probable cause. Courts have identified numerous exceptions that allow police to enter private property and conduct searches without a warrant. They must be able to convince a judge that the search fits within an identified exception. The Fifth Amendment guarantees the right against self-incrimination. Police cannot coerce a person to confess to a crime, and prosecutors cannot compel a person to implicate themselves. A defendant can challenge the constitutionality of a search or arrest by filing a motion to suppress evidence. If a judge finds a violation of constitutional rights, any evidence obtained as a result is suppressed, meaning prosecutors cannot use it at trial.

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The device used for breath testing by New Jersey police in investigations of suspected driving while intoxicated (DWI), known as the Alcotest, has come under significant scrutiny several times in recent years. In order to ensure the accuracy of the results produced by the device, police must perform regular maintenance and calibration. Our New Jersey DWI lawyers were involved in a case before the New Jersey Supreme Court in 2008 that produced a set of procedures police must follow for Alcotest results to be admissible in court, including standards for device maintenance and calibration. Starting in 2016, allegations of misconduct by a police sergeant in charge of maintaining Alcotest devices in five counties called over 20,000 DWI cases into question. In July 2019, the New Jersey Supreme Court announced that a four-judge panel would review those cases, and could grant post-conviction relief (PCR) when appropriate.

New Jersey’s DWI statute allows prosecutors to prove that a defendant was impaired with evidence of blood alcohol content (BAC). A BAC of 0.08 percent or higher creates a presumption of intoxication. Police throughout the state use the Alcotest to perform breath tests on DWI suspects. In State v. Chun, the state supreme court addressed concerns about the Alcotest’s accuracy and reliability. Its 2008 decision in that case requires police to follow specific calibration procedures, and to document routine performance of those procedures. Prosecutors seeking to prove DWI with BAC evidence must produce the most recent maintenance report predating the use of a device by a defendant.

A 2016 indictment against a former sergeant with the New Jersey State Police accused him of filing false Alcotest maintenance reports for devices in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. An investigation found that 20,667 DWI cases from 2008 to 2016 relied on devices with potentially false documentation. The state supreme court appointed a special master to review the matter. The special master issued an order in November 2017 staying all cases involving potentially-affected Alcotest machines. Her investigation found that the falsified records called a substantial number of DWI cases into question. The state supreme court affirmed this report in a November 2018 ruling.

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Police in New Jersey often ask individuals suspected of driving while intoxicated (DWI) to perform field sobriety tests (FSTs), which allow officers to look for supposed signs of intoxication. Of the three standard FSTs used by New Jersey law enforcement, two are based entirely on the ability to maintain balance. Various injuries and medical conditions can also affect performance on these tests. It is possible for a defendant charged with DWI to produce evidence about an injury or illness to challenge an officer’s testimony about FST performance, although this is usually not the only evidence of intoxication the state will offer. In early 2019, the New Jersey Superior Court, Appellate Division ruled on a New Jersey DWI case with this kind of challenge.

The DWI statute requires proof that a defendant was either “under the influence” of alcohol or drugs or had a blood alcohol concentration (BAC) of 0.8 percent or higher. Prosecutors often introduce evidence of both, for good measure. If a person refuses or is unable to submit a breath sample for BAC testing, prosecutors must rely on evidence that a person was “under the influence.” A 1975 decision by the New Jersey Supreme Court established that this term means “a substantial deterioration or diminution of the mental faculties or physical capabilities of a person” caused by alcohol or another drug.

In 2006, the state supreme court ruled that expert testimony, such as by a physician or other medical professional, is not necessary to demonstrate the “influence” of alcohol or drugs. Testimony from police officers who witnessed a defendant’s behavior and appearance can, by itself, sustain a conviction for DWI. This might include testimony about slurred speech or bloodshot eyes, the odor of alcohol, or swaying or stumbling during the FSTs. A defendant with a health condition that could impact their FST performance, on the other hand, usually must present expert testimony.

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In order to prove guilt in a case of alleged driving while intoxicated (DWI) in New Jersey, the state must be able to justify all of the police’s actions leading to the DWI charges. This includes the officer’s decision to stop the defendant’s vehicle, the basis for conducting an investigation, and the decision to place the defendant under arrest. The Fourth Amendment to the U.S. Constitution generally prohibits warrantless searches and seizures, although numerous exceptions apply. Courts have held that evidence in a police officer’s “plain view” may justify a warrantless search. Similarly, odors that are within an officer’s “plain smell,” such as the smell of alcohol emanating from a vehicle, may serve as a basis for suspecting a driver of DWI.

The “plain view doctrine” holds that police may conduct a limited search without a warrant if contraband or other evidence of unlawful activity is plainly visible to them. For example, if an officer pulls a car over for speeding, and they can see a bag of drugs sitting in the passenger seat, they may be able to search part or all of the vehicle without a warrant. The “plain smell doctrine” gives police a limited right to conduct a warrantless search based on odors that suggest illegal conduct. This often involves the odor of alcohol or marijuana. A 2018 ruling by the New Jersey Appellate Division held that merely smelling something is not a “search” within the meaning of the Fourth Amendment. “[A]n officer standing outside of an automobile who smells the odor of marijuana emanating from within it” the court held, “has not conducted a ‘search.’”

An officer’s testimony about smell might not be enough, by itself, to justify an investigation or arrest. Police rarely stop a vehicle because of an alleged odor of alcohol, if only because smelling a moving vehicle is exceedingly difficult. Police must be able to justify the traffic stop before odor-related evidence is even a factor. In a 2019 ruling, the Appellate Division considered a defendant’s challenge to the arresting officer’s request to conduct field sobriety tests. The court recounted the officer’s testimony about the defendant’s driving, which reportedly included weaving and a “California stop,” provided reasonable suspicion for the stop. At that point, the defendant’s appearance, along with the smell of alcohol, provided probable cause for a DWI investigation.

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Police in New Jersey have many ways to build a case for driving while intoxicated (DWI). They can establish probable cause for an arrest by instructing a suspect to perform field sobriety tests (FSTs). A “perfect” performance on FSTs is essentially impossible and is unlikely to help someone avoid arrest regardless. Defending against New Jersey DWI charges that include alleged failed FSTs means challenging whether police officers correctly administered the tests. A Pennsylvania town recently sought volunteers for an unusual form of police training. New Jersey police have not yet asked for volunteers to get drunk so officers can practice administering FSTs, but the outcome of the Pennsylvania training may change that.

State law allows prosecutors to make a case with evidence of impairment besides blood alcohol content (BAC). The DWI statute defines the offense, in part, as driving a motor vehicle “while under the influence” of alcohol or drugs. Eyewitness testimony from officers, including FST performance, is often the main evidence presented by the state.

The National Highway Traffic Safety Administration (NHTSA) has established a set of standardized FSTs that most states have adopted. The set of standardized FSTs consists of three tests:
1. One-Leg Stand: The suspect must raise one foot about six inches off the ground and hold it there.
2. Walk and Turn: The suspect must walk a straight line, keeping their heel to their toe with each step, for a total of nine steps. Then, they must turn 180 degrees and repeat the process until they return to the starting point.
3. Horizontal Gaze Nystagmus: The officer holds a pen or other object at a constant distance from the suspect’s face while moving it from side to side. The suspect must follow the object with their eyes without moving their head. The officer is looking for involuntary eye movement, known as nystagmus, supposedly associated with intoxication.

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New Jersey has developed an extensive body of law addressing the investigation and prosecution of suspected driving while intoxicated (DWI), at least when the substance in question is alcohol. Testing the amount of alcohol present in a person’s system, known as blood alcohol concentration (BAC), is a highly imperfect process, which is prone to constant errors. Despite its many flaws, it is still a better system than anything available for determining whether a driver was impaired by other drugs. Currently, New Jersey prosecutors pursuing alleged driving under the influence of drugs (DUID) must rely on (1) chemical tests with no specific threshold amount to determine impairment, and (2) the testimony of police officers purportedly trained to identify outward signs of intoxication by various drugs. As legislators continue to consider the New Jersey Cannabis Regulatory and Expungement Aid Modernization Act (NJCREAMA), questions will continue to abound about how to enforce DUID laws involving marijuana, and how to defend people charged with that alleged offense. If you have been charged with a DWI, it is important that you speak with a New Jersey DWI attorney as soon as possible.

In cases involving alcohol, New Jersey’s “legal limit” of 0.08 percent BAC creates a presumption of impairment. This is often known as per se DWI. New Jersey law has no specific threshold amount for marijuana or any other drug in DUID cases. Police can seek a warrant to test samples of blood or urine, but that only indicates whether or not a suspect had a particular drug in their system at the time the sample was taken. Prosecutors usually must produce other evidence to establish impairment. This often involves testimony by police officers who receive specialized training as “drug recognition experts” (DREs).

In cases involving alleged marijuana impairment, chemical testing evidence and DRE testimony may conflict with one another. Marijuana can show up in blood or urine tests long after its effects have worn off. Several recent New Jersey cases have relied on chemical tests allegedly showing the presence of marijuana in a driver’s system, despite testimony from eyewitnesses, including police officers, who did not notice any signs of impairment.

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In New Jersey, driving while intoxicated (DWI) is not a criminal offense in most situations. Instead, it is a motor vehicle offense, defined in the same chapter of New Jersey law as offenses like reckless driving and driving with a suspended license. A conviction for DWI can still lead to significant penalties, including up to 180 days in jail, fines, and lengthy periods of driver’s license suspension. New Jersey law allows prosecutors to charge a person with one or more criminal offenses in connection with a DWI in certain circumstances. When a person allegedly commits DWI while a minor is a passenger in their vehicle, prosecutors can charge them with a misdemeanor-level offense. If the alleged offense involves a significant amount of risk to the child’s safety, the state can charge a person with the more serious offense of endangering the welfare of a child (EWC).

The EWC statute does not specifically mention DWI, but prosecutors have applied it to such situations on many occasions. It makes reference to several provisions in Title 9 of the New Jersey Revised Statutes, which address the abuse, abandonment, and neglect of children. Section 9:6-8.21(1)(c), for example, defines an “abused or neglected child” in part as one whose “parent or guardian” has “create[d] or allow[ed] to be created a substantial or ongoing risk of physical injury” that is likely to lead to the child’s death, disfigurement, or debilitating injury. Section 9:6-3 makes such acts or omissions by a responsible adult a criminal offense.

Abuse or neglect of a child is a “crime of the fourth degree” according to § 9:6-3. This is the equivalent of a felony offense in other state’s criminal codes. New Jersey uses the term “indictable crime” or “crime of the [X] degree” to refer to these levels of offense. The New Jersey Code of Criminal Justice, located in Title 2C, defines EWC as a crime of the second degree when it involves acts identified in provisions like § 9:6-8.21(1). These offenses are punishable by much longer terms of incarceration than motor vehicle offenses or misdemeanors, identified in New Jersey as “disorderly persons offenses.”
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New Jersey law defines driving while intoxicated (DWI) as a motor vehicle offense, instead of a criminal offense. In certain situations, however, a DWI case can lead to criminal charges. One way is when a person allegedly commits DWI while a minor is a passenger in the vehicle. In many cases, this is a separate offense classified as a “disorderly persons offense,” the equivalent of a misdemeanor under New Jersey law. If the circumstances of a particular case allegedly placed a child at particular risk, however, prosecutors could charge a defendant with a felony-level offense. While DWI with a minor is a more serious offense than DWI in most ways, it also differs from DWI in some unusual ways. A DWI with a minor conviction, for example, might be eligible for expungement, while a DWI conviction is not.

The main DWI statute, found in § 39:4-50 of the New Jersey Revised Statutes, actually defines at least four distinct offenses: first-time DWI, second DWI, third or subsequent DWI, and DWI in a school zone. DWI with a minor is found in § 39:4-50.15. It defines a “minor” as a person who is no more than seventeen years old. A “parent or guardian” is anyone with “a legal duty for…care, custody or control” of a minor, even on a temporary basis. This includes a driver with a minor as their passenger.

DWI with a minor is a disorderly persons offense. A person must be convicted of DWI in order to be found guilty of DWI with a minor, but the statute defines them as two separate offenses. The New Jersey Code of Criminal Justice, found in Title 2C of the New Jersey Revised Statutes, does not define criminal offenses with the familiar terms “felony” or “misdemeanor.” Instead, it uses the terms “crime” and “disorderly persons offense,” respectively, to refer to each. While New Jersey law states that a disorderly persons offense is not a “crime,” this only means that it is not a “felony.”
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The Fourth Amendment to the U.S. Constitution protects people from “unreasonable searches and seizures” that are not supported by probable cause. It generally requires law enforcement officers to obtain a warrant from a judge before they may conduct a search, seize property, or make an arrest. Courts have identified numerous exceptions to this requirement, however. In New Jersey driving while intoxicated (DWI) cases, drivers give their implied consent to provide breath samples to police. A blood draw, however, is considered much more intrusive, and is not covered by the implied consent law. The U.S. Supreme Court has issued several rulings over the years on the question of whether police may order blood drawn from a DWI suspect without a warrant or the suspect’s consent. A ruling from June 2019, Mitchell v. Wisconsin, involved a warrantless blood draw on a suspect who was unconscious. The court vacated the conviction and remanded the case without a clear majority ruling, but five justices were inclined to support warrantless blood draws in certain situations.

If police obtain evidence in violation of someone’s Fourth Amendment rights, that person can ask a court to prevent the use of that evidence against them at trial. This is known as a motion to suppress. The state can offer various justifications for a warrantless search. The “exigent circumstances” exception has featured prominently in DWI cases involving warrantless blood draws. This exception allows police to conduct a search or seize property without a warrant when there is a significant risk of the loss or destruction of material evidence or contraband.

The Supreme Court took up the question of whether the exigent circumstances exception applies to warrantless blood draws in 2013, in Missouri v. McNeely. In a 5-4 ruling, the court found that the breakdown of alcohol in the human body over time is not, by itself, an “exigent circumstance” justifying a warrantless blood draw. It did not, however, foreclose all possibility of an exigent circumstance exception in the future.
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