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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Police carThe Bill of Rights in the U.S. Constitution protects numerous rights against abuses and injustice in criminal cases. Most of these constitutional rights apply in New Jersey driving while intoxicated (DWI) cases, including the Fourth Amendment’s protection of people’s right to be free from “unreasonable searches and seizures.” Identifying violations of these rights is a major component of defending against DWI charges. Most DWI cases begin with a traffic stop, in which police pull a vehicle over on the road. Police must have a “reasonable suspicion” of some sort of wrongdoing for a traffic stop to be legal. Challenging the legality of a stop can lead to the exclusion of most or all of the state’s evidence and the dismissal of the case.

According to the Fourth Amendment, police must obtain a warrant before conducting a search or seizing a person or their property. That warrant must be supported by probable cause to believe that doing so will produce evidence of a crime or another offense. The U.S. Supreme Court has held, however, that police may briefly detain a person to investigate possible criminal activity when they do not have probable cause, if they have a “reasonable suspicion” of something unlawful. This type of stop is known as a “Terry stop,” after the Supreme Court’s decision in Terry v. Ohio in 1968.

The U.S. Supreme Court has ruled that traffic stops are “seizures” within the meaning of the Fourth Amendment, and they are therefore subject to the restrictions established by Terry. A 1984 Supreme Court decision, Berkemer v. McCarty, found that Terry applies to traffic stops for suspected traffic offenses, including DWI. It also held that people are entitled to the protections of the Fifth Amendment, including the rights described in Miranda v. Arizona, if they are taken into custody during a traffic stop.

EmojiAnyone who watches cop shows on television knows the warning police must read to a suspect when they place them under arrest. Known as the “Miranda warning,” after the U.S. Supreme Court’s 1966 decision in Miranda v. Arizona, it is legally required before police may formally interrogate a suspect. The list of rights identified in the Miranda warning are commonly known as Miranda rights. Miranda is considered a landmark decision in criminal justice. Although New Jersey’s driving while intoxicated (DWI) statute classifies the offense as a motor vehicle offense, rather than a “crime,” Miranda still applies when police take a DWI suspect into custody.

The Miranda decision arose from a confession signed by a suspect after hours of police interrogation, during which time he was never advised of various constitutional rights. The Supreme Court held that the confession was inadmissible because the defendant did not give it voluntarily, but instead under duress from police officers. The court further stated that police must stop an interrogation once an individual has asserted certain rights. It directed police to advise people of their rights before or at the time they are arrested. From this, the Miranda warning was born. The court would later specifically rule that Miranda applies to DWI cases in Berkemer v. McCarty in 1984.

The first right identified in the Miranda warning—the right to remain silent—refers to the Fifth Amendment’s protection against self-incrimination during “custodial interrogation.” The important question to consider regarding how Miranda applies in New Jersey DWI cases involves the definition of “custody,” as well as the meaning of “silence.” The two are closely related, as the caselaw shows, and DWI cases present at least one specific complication of the idea of the right to remain silent. In New Jersey and many other states, DWI suspects are required by law to provide breath samples for chemical testing. Courts have generally held that this does not violate the Fifth Amendment’s right against self-incrimination.

iPhone 5SThe Fifth Amendment to the U.S. Constitution protects the right against self-incrimination. The extent of this protection is not always clear, however, and the right to refuse to provide information to police has limits. In driving while intoxicated (DWI) investigations, suspects are often asked to provide breath samples for chemical testing. The evidence obtained from breath testing can provide the state with nearly all of the information it needs to bring a DWI charge. In New Jersey DWI cases, providing a breath sample is actually mandatory under the law. Is this the sort of self-incrimination covered by the Fifth Amendment? A long line of court decisions says that no, it is not, but understanding why may be helpful in understanding the rights a DWI defendant does have.

Under New Jersey law, a refusal to submit a breath sample for chemical testing, upon a request by police, is a motor vehicle offense punishable by a fine and a driver’s license suspension. New Jersey courts have imposed strict requirements for submitting to breath testing. Anything other than unambiguous agreement could constitute refusal. A 2007 decision from the New Jersey Appellate Division, State v. Spell, held that a DWI suspect has no right to request testing after they have already refused. In that case, the defendant claimed he was having chest pains and could not provide a breath sample, but he told an officer he was feeling better after a hour. He offered to submit a sample at that time, but the officer “declined because defendant had already refused.”

The Fifth Amendment states that “no person…shall be compelled in any criminal case to be a witness against himself.” This applies to sworn testimony in a court of law, which is where we get the term “pleading the Fifth.” It also protects the “right to remain silent” during custodial police interrogations, which generally means after a person has been placed under arrest and advised of their rights. In most situations, a person must affirmatively state that they are invoking their right against self-incrimination, or else police may continue questioning them.