Articles Posted in Defending the Case

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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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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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.

Interrogation Room at Alcatraz IslandWhen police detain and question a person on suspicion of driving while intoxicated (DWI), the Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution protect that person’s rights. The Fourteenth Amendment officially extended most of the Bill of Rights to state-level law enforcement, meaning that local police are subject to the same constraints as the federal government. In the context of New Jersey DWI cases, the Fourth Amendment states that police cannot detain someone, such as by pulling over their vehicle, without reasonable suspicion of wrongdoing. The Fifth Amendment states that a defendant cannot be forced to testify against themselves, and limits the state’s ability to use certain statements made by defendants against them in court. Exactly when this right against self-incrimination applies has been a matter of ongoing dispute in the courts. The U.S. Supreme Court has made several rulings specifically addressing incriminating statements in DWI cases.

The landmark U.S. Supreme Court case addressing the right against self-incrimination during police interrogation is Miranda v. Arizona, decided in 1966. Information obtained by police from a person, after they have invoked their “right to remain silent” during “custodial interrogation,” is inadmissible in court. While people can refuse to answer police questions at almost any time, Miranda obligates police to advise people of their rights in specific scenarios. Many subsequent court decisions have found that Miranda only applies once a person has been formally placed under arrest and read this list of rights. Whether a person is “under arrest” during a traffic stop is a complicated question.

Police do not typically give Miranda warnings to DWI suspects at the beginning of a traffic stop. Still, officers may ask questions of a driver, and ask the driver to perform field sobriety tests. With some exceptions, courts do not consider this to be a “custodial interrogation” within the meaning of Miranda. Police are therefore not obligated to advise people of their Miranda rights at this point, placing the burden of invoking the right against self-incrimination on the driver.
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