Articles Posted in Defending the Case

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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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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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New Jersey defines driving while intoxicated (DWI) in both general and specific terms. The most straightforward way for the state to prove that a defendant was too impaired to drive is to show that the defendant’s blood alcohol content (BAC) was at or above a certain level. This creates a presumption of impairment. Alcohol is not the only substance, however, that can cause impairment. While police can test samples of blood or urine for other substances, state law does not identify a specific “legal limit” of any substance besides alcohol. Police in New Jersey regularly use officers known as drug recognition experts (DREs) to testify about indications of impairment in a defendant’s appearance or behavior. Advocates for DWI defendants in New Jersey have challenged DRE testimony’s scientific reliability. The New Jersey Supreme Court is preparing to hear a DWI case that involves a direct conflict between BAC evidence and DRE testimony.

The DWI statute identifies two scenarios in which a driver commits an offense. One involves driving with a BAC of 0.08 percent or more. The other involves driving “while under the influence of” alcohol or other substances. Perhaps because DWI based on BAC is generally easier to prove, state DWI law focuses on breath testing. Drivers are required to submit breath samples for the purpose of measuring BAC. Refusal is a motor vehicle offense, separate from DWI and punishable by driver’s license suspension and a fine.

Proving that a driver was “under the influence” can be far more difficult, especially if BAC is unavailable or less than 0.08 percent. The statute does not define the term, beyond the implication that a driver must be impaired to a similar degree as one with 0.08 percent or greater BAC. Police officers may testify about their observations of a defendant’s demeanor and appearance, as well as other evidence from the scene. This testimony often includes elements like slurred speech, clumsy movements, bloodshot eyes, and the odor of alcohol. Not all “intoxicating” substances affect people the same way, though. This is supposedly where DREs come in.
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A person commits the offense of driving while intoxicated (DWI) in New Jersey when they operate a motor vehicle while impaired by alcohol or a drug. The DWI statute establishes four levels of penalties. The first two levels apply to first offenses. The remaining levels apply to second offenses and third or subsequent offenses. The New Jersey Legislature amended the statute in 1999 to add enhanced penalties for DWI offenses that occur on or near school property, or in designated crosswalks. The general offense of DWI is codified in § 39:4-50(a) of the Revised Statutes, and the school-related provisions are in subsection (g). In 2004, the New Jersey Supreme Court ruled that subsection (g) is a separate offense from subsection (a). This has created some confusion about how to determine when a prior New Jersey DWI conviction should count toward a sentencing enhancement.

Subsection (a) sets two levels of penalties for a first DWI offense. If the defendant had a BAC of more than 0.08 percent, but less than 0.10 percent, the penalties include a fine of $250 to $400, jail time of 12 to 48 hours, and a three-month driver’s license suspension. Some penalties increase if the defendant’s BAC was 0.10 percent or higher, such as a fine of $300 to $500 and a license suspension of seven months to one year. The penalties increase for a second offense, and again for a third or subsequent offense, provided that the most recent previous offense occurred no more than 10 years earlier.

The New Jersey Legislature passed Senate Bill 854 in June 1999, and it was signed into law in August of that year. Legislators named the bill “Filomena’s Law,” after a school crossing guard who was killed by a drunk driver in 1997. The bill amended numerous provisions of New Jersey law, including sections of the Code of Criminal Justice addressing vehicular homicide and other offenses. It added subsection (g) to the DWI statute, which applies when a person commits DWI on school property, within 1,000 feet of school property, in a designated school crossing, or in an area the driver knows is being used as a school crossing.

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New Jersey’s driving while intoxicated (DWI) statute sets multiple levels of penalties, primarily based on a defendant’s number of convictions within the prior decade. Enhanced penalties apply for a second offense within a ten-year period, and again for a third or subsequent offense. A 1999 amendment to the DWI statute created a separate set of penalties, found in subsection (g) of the statute, for DWI on or near school property. Uncertainty has arisen with regard to whether a conviction under one subsection should count as a prior offense in a new case under the other subsection, and how to apply the sentencing enhancements found in each subsection. Decisions from the New Jersey Supreme Court and the Appellate Division have held that the order in which the two offenses occur—(g) followed by (a), or (a) followed by (g)—is important.

The penalties for a second DWI conviction under subsection (a) include a fine of $500 to $1,000, imprisonment of forty-eight hours to ninety days, and driver’s license suspension for two years. A second offense under subsection (g) has harsher penalties: a fine of $1,000 to $2,000, imprisonment of ninety-six hours to 180 days, and a four-year license suspension. The penalties for a third or subsequent offense within ten years are also greater under subsection (g) than subsection (a).

A 2004 New Jersey Supreme Court ruling involved a defendant convicted of DWI under subsection (g), with a prior conviction under subsection (a). The municipal court applied subsection (g)’s enhanced penalties for a second offense. The Appellate Division affirmed this sentence, finding that a second DWI offense in a school zone “can be viewed as an escalating violation.”
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When the state charges a person with driving while intoxicated (DWI) in New Jersey, prosecutors have the burden of proving each element of the offense. This includes proving that police did not violate the defendant’s rights against unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution. As a general rule, police must obtain a warrant in order to conduct a search, seize property, and make an arrest, but courts have identified many exceptions. In practice, police may conduct warrantless searches in certain situations. Courts have ruled that police may briefly detain a person without a warrant, and without the “probable cause” required to obtain a warrant, when they can demonstrate “reasonable suspicion” of some sort of wrongdoing. This is a lower standard than probable cause, and the distinction can be important in defending against DWI charges in New Jersey courts.

New Jersey’s DWI statute prohibits driving while under the influence of alcohol or other substances that are likely to impair a person’s ability to operate a motor vehicle. A defendant can challenge or dispute the evidence offered by the state, but they might also be able to challenge the constitutionality of the arrest itself. Many DWI cases begin with a traffic stop, when a police officer pulls a driver over on the road. If a police officer lacked a legal justification for the stop, the court could suppress any evidence obtained as a result of the stop, or dismiss the case altogether. A defendant must move to suppress evidence obtained in violation of their Fourth Amendment rights.

The U.S. Supreme Court ruled in Terry v. Ohio in 1968 that police may detain a person briefly based on the “reasonable suspicion” standard. These are commonly known as Terry stops. The case involved a person stopped and searched by the police while on foot, but the reasonable suspicion standard has also been applied to traffic stops.
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