Defending the Case

September 17, 2015

Five Factors Courts May Consider in Determining Whether a Driver Was Impaired in a New Jersey DWI Case

A common misconception in driving while intoxicated (DWI) cases involves breath testing and blood alcohol content (BAC). New Jersey’s DWI statute states that a person who operates a vehicle with a BAC of 0.08 percent or higher commits a violation, but this is not the only way the state can prove intoxication or impairment. The statute actually defines the offense in two ways: driving with a BAC above a minimum amount, or driving “under the influence” of alcohol or other drugs. Even without any BAC evidence, prosecutors may still be able to prove that a defendant was “under the influence,” intoxicated, or otherwise impaired. The Appellate Division of the New Jersey Superior Court issued a ruling several months ago in State v. Kessler, which identified various methods of presenting evidence of intoxication or impairment.

A police officer pulled the defendant over at about 1:22 a.m. He had allegedly observed the defendant swerve from the left lane of the highway into the center lane, putting him in the path of a tractor-trailer. He also claimed that the defendant was driving without his headlights on. The officer testified that the defendant’s eyes appeared “bloodshot and watery,” and the officer could smell alcohol. The defendant allegedly refused to submit a breath sample and did not perform well on several field sobriety tests (FSTs).

The defendant was charged with DWI, refusal to submit to breath testing, reckless driving, and other offenses. At trial in the municipal court, the defendant presented testimony from several expert witnesses. One witness testified about difficulties faced by some people on the horizontal gaze nystagmus (HGN) test. Another witness testified about conditions, both congenital and injury-related, affecting the ability to perform FSTs like the walk-and-turn and one-leg-stand tests. The defendant denied drinking any alcohol on the night of his arrest.

August 31, 2015

Defendant in New Jersey DWI Case Claims Act of Driving Was Justified to Avoid “Greater Evil”

by Evan M. Levow

In some situations, a defendant in a criminal case can claim that their actions were justified under the specific circumstances that existed at the time of the alleged offense, since they were necessary to avoid or prevent a different crime or injury that would have been objectively worse. This is generally known as the defense of “necessity.” It comes up occasionally in New Jersey driving while intoxicated (DWI) cases. Successfully arguing this in court can be very difficult, as indicated by several recent decisions from the New Jersey Superior Court, Appellate Division. Its ruling in State v. Giaquinto, issued in June 2015, offers a particularly stark example of this.

The court’s opinion in Giaquinto, unlike most appellate opinions, has a certain dramatic flair, perhaps because of the harrowing details of the case. Police in Sparta Township responded to a report of a hit-and-run at about 1:00 a.m. and located the defendant’s car “traveling at a very low rate of speed.” The defendant reportedly had “scratches on her legs and [was] wearing nothing but a leather jacket.” The officer testified that the defendant had slurred speech and “a strong odor of alcohol,” and she denied hitting a wall in her car or being naked. The officer eventually convinced her to put on a dress he saw in the backseat. She reportedly failed several field sobriety tests and failed to provide sufficient breath for the Alcotest. Another officer testified that she “rang[ed] from calm and cooperative to belligerent and verbally abusive.”

At trial, the defendant testified that, on the night of her arrest, she met an acquaintance identified as Maggie at about 7:15 p.m. at a restaurant, where she drank two martinis. She then went to Maggie’s house at 10:00 p.m. “to meet her dog, the same breed as defendant’s.” The defendant said Maggie gave her a glass of wine that tasted “bizarre.” She claimed to have little memory of the rest of the night, except for “spotty” memories of a sexual assault.

August 29, 2015

New Jersey Appellate Courts Are Limited in Their Ability to Review Factual Findings in DWI Cases

by Evan M. Levow

A prosecution for alleged driving while intoxicated (DWI) in New Jersey usually begins in the municipal court of the city, borough, town, township, or village in which the arrest occurred. A defendant can appeal a DWI conviction for reversible error, abuse of discretion, and other grounds. A July 2015 appellate court decision, State v. Hwang, offers an overview of the appeals process in New Jersey DWI cases.

An appeal from a municipal court order or verdict goes to the New Jersey Superior Court, Law Division in the county where the municipal court is located. From there, it would go to the Superior Court, Appellate Division. At this level of appeal, the court has much less discretion to review the lower courts’ findings of fact. Further appeals go to the New Jersey Supreme Court, and finally the United States Supreme Court.

A Hillsborough Township police officer pulled over the defendant in Hwang in October 2012 after allegedly witnessing her swerve across the median line several times. He testified that she failed several field sobriety tests, refused to comply with his orders, and failed to provide an adequate breath sample for the Alcotest. Prosecutors charged her with DWI, refusal to submit to breath testing, failure to stay in the right lane, and resisting arrest. While the case was pending, the defendant sued the arresting officer, claiming illegal arrest and assault. She later filed a federal civil rights lawsuit against the township.

August 20, 2015

Felony DWLS Conviction Overturned by New Jersey Appellate Court

by Evan M. Levow

A conviction for driving while intoxicated (DWI) in New Jersey usually results in a driver’s license suspension, with the length of time varying based on the defendant’s blood alcohol content (BAC) and number of prior convictions. Driving while license suspended (DWLS) is a separate traffic offense under New Jersey law, which rises to the level of a felony criminal offense in certain circumstances. The New Jersey Superior Court, Appellate Division issued an important ruling recently in State v. Diaz, reversing a criminal DWLS conviction based on the underlying reason for the defendant’s license suspension.

DWLS is a fourth-degree criminal offense in some situations, with a mandatory minimum jail sentence of 180 days. This provision became effective on August 1, 2011. It applies in two situations, described in § 2C:40-26 of the New Jersey Revised Statutes. These are when the defendant has a prior conviction for DWLS, which occurred during a period of suspension for a DWI conviction, or when the defendant’s current license suspension is due to a second or subsequent DWI conviction.

In the Diaz case, the defendant was arrested in August 2013 and charged with DWI, DWLS, and several other offenses. According to the court’s opinion, the defendant’s driving record showed two prior DWI convictions and three DWLS convictions. The DWI convictions occurred in March 2008 and April 2009. The April 2009 case also included a DWLS conviction. The other DWLS convictions were in January 2011 and February 2013. The timing of the various suspensions was critical to determining whether the defendant committed criminal DWLS, or merely a traffic offense, in August 2013.

August 3, 2015

Is a “Necessity” Defense Possible in a New Jersey DWI Case?

by Evan M. Levow

The defense of “necessity” claims that a person charged with an offense was justified in committing an otherwise unlawful act, and therefore should not face legal penalties. New Jersey law, as interpreted by New Jersey courts, sets a high bar for a defendant claiming necessity, but once a defendant clears this bar, the burden shifts to the state to disprove the necessity defense beyond a reasonable doubt. A recent decision by the New Jersey Superior Court, Appellate Division, State v. A.T., considered whether a defendant could raise the necessity defense in a DWI case. While the court ultimately affirmed the defendant’s conviction, it addressed some important criteria for establishing necessity in such a case.

The defendant in A.T. was found guilty of third-offense driving while intoxicated. She was sentenced to 180 days in jail, a 10-year license suspension, and one year of ignition interlock use. The Law Division affirmed the verdict and sentence, and the case went to the Appellate Division. The necessity defense arose from the circumstances that led to the defendant being behind the wheel on the night she was arrested. She was allegedly concerned about domestic violence, and unfortunately the various courts’ rulings follow the common pattern of demanding a high burden of proving such a threat.

The defendant testified that she was at her boyfriend’s apartment, drinking beer, when her boyfriend’s brother told her to leave. She refused to leave, and she claimed that he became upset, began yelling, and threatened to call the police. He also, she alleged, prevented her from using the telephone. She testified that both she and her boyfriend tried to calm the brother down, and they told him that the defendant was in no condition to drive. She claimed that she left the apartment because “she feared physical abuse and arrest.” She drove part of the way home, but then she changed her mind and turned around. She testified that she did not think she could get all the way home safely, and that if the police were at her boyfriend’s apartment, they might be able to help her. On her way back to the apartment, she struck two parked vehicles, which led to her arrest.

July 22, 2015

How Federal Law Could Affect a New Jersey DWI Case

by Evan M. Levow

The United States has a federal system of government, in which state governments have the authority to pass laws with regard to some issues, and the federal government in Washington handles other issues. Criminal law is one of many areas where state and federal governments might overlap, but driving while intoxicated (DWI) is almost always handled at the state level. A DWI may be subject to prosecution under federal law in some situations, and various federal agencies have established penalties for certain people with DWI convictions. Congress has also found ways to influence state laws relating to DWI.

Overview of New Jersey DWI Law

In New Jersey, the state must prove that a driver was either impaired as a result of alcohol or a controlled substance, or had a blood alcohol concentration (BAC) of 0.08 percent or more. Penalties for DWI increase based on the number of prior convictions or the driver’s BAC. A driver who is under 21, the state’s legal drinking age, could be charged with underage DWI if they have a BAC of 0.01 percent or more. New Jersey also makes it an offense to refuse to submit a breath sample for BAC testing when a police officer has probable cause to suspect DWI, which can result in license suspension.

July 1, 2015

New Jersey Considers “Excusable Neglect” Argument by Defendant Who Sought Post-Conviction Relief More than Two Decades After DWI Case

by Evan M. Levow

The defendant in a DWI case appealed the denial of his motion for post-conviction relief (PCR), which the municipal court and the Superior Court, Law Division said was not filed in a timely manner. He claimed that he was not aware of his right to bring a motion for PCR, and he noted that he was not represented by counsel in his earlier DWI case. These factors, he argued, constituted “excusable neglect,” which would allow a court to waive the usual five-year deadline to bring a PCR motion. The Appellate Division disagreed, finding in State v. Reese that a lack of knowledge of the law does not excuse a late filing. The court’s decision underscores the importance of retaining knowledgeable counsel at the earliest stage of a DWI case.

The original DWI case began in August 1983, when the Hammonton Municipal Court issued a summons for driving while intoxicated and driving while license suspended. The defendant failed to appear at the September court date but called the court prior to the rescheduled court date that October. The court postponed the case several times in 1983 and 1984. It issued a bench warrant for failure to appear in March 1984, but when police tried to serve the warrant, they noted that the defendant no longer lived at his address on file.

The case remained inactive until May 1991, when the defendant tried to restore his driver’s license at the Department of Motor Vehicles and was informed that a case was pending against him in Hammonton. He appeared in court shortly afterwards without an attorney. He claims that he did not waive his right to counsel, and the court did not advise him of his right to a court-appointed lawyer. An entry on the back of the summons says that he was “advised as to rights” and then simply has the notation “waived.” The defendant pleaded guilty to the DWI charge.

June 25, 2015

Defendant Argues “Mistake of Law” in New Jersey DWI Appeal

by Evan M. Levow

In a New Jersey DWI case, a defendant may claim that a police officer made a mistake that affects the outcome of the case. A “mistake of law” might involve conduct that an officer incorrectly believes is against the law, while a “mistake of fact” could be an error or misconception that leads an officer to wrongly think a driver has committed an offense. Mistakes of law are more likely to help a defendant fighting a DWI charge, although the legal landscape has recently changed considerably. A New Jersey Appellate Division decision, State v. Fath, involved an alleged mistake of law by the arresting officer that required dismissal of the DWI charge. The court found that it was actually a mistake of fact and that the officer’s decision to stop the defendant’s vehicle was justified on other grounds.

The arresting officer testified that he was stopped at a red light, facing the defendant’s vehicle, when he saw her make a right turn on red in violation of a posted “no right turn on red” sign. He followed her and then claimed that he witnessed her “carelessly cross oncoming traffic in order to make a left-hand turn.” He pulled her over, and she was ultimately charged with DWI, careless driving, and “failing to observe a traffic signal prohibiting a turn on red.”

The defendant moved to suppress the evidence obtained during the traffic stop. New Jersey traffic law requires drivers to obey all traffic control devices “placed in accordance with the provisions of this chapter.” Right turns on red are allowed “unless an official sign…prohibits the same.” The defendant produced a certification from the New Jersey Department of Transportation stating that it had failed to find any official approval of a “no right turn” sign at that intersection. In other words, she argued that the sign was not “an official sign” under New Jersey law, and it was therefore a mistake of law for the officer to stop her for making a right turn.

June 19, 2015

Recent Decisions in Several New Jersey DWI Appeals Demonstrate that Actual Driving Is Not Always Required to Sustain a DWI Conviction

by Evan M. Levow

In order to prove that a defendant has committed the offense of driving while intoxicated (DWI) in New Jersey, prosecutors do not necessarily have to provide direct proof that the defendant was driving, such as through testimony from an arresting officer that they saw the defendant driving erratically, or that they pulled the defendant over on suspicion of another traffic offense and noticed signs of intoxication. Under New Jersey law, the key element of a DWI offense is that a defendant has control of a vehicle while under the influence of alcohol or drugs. Several recent decisions by the New Jersey Superior Court, Appellate Division deal with situations where an arresting officer did not witness actual driving, but where the court still found the defendant guilty of DWI.

New Jersey’s DWI statute defines the offense, in part, as “operat[ing] a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or…with a blood alcohol concentration of 0.08% or more…” While the plain meaning of these words suggests that the state must prove actual operation of a vehicle, New Jersey courts have held that it is enough to prove that a defendant was imminently capable of operating a vehicle, or that evidence suggests that they had been operating the vehicle before the arresting officer’s arrival on the scene.

Evidence supporting a DWI conviction could include testimony indicating that the vehicle could not have gotten into the position where the officer found it without the defendant driving it there, or something as simple as the officer finding the defendant in the driver’s seat of a stopped vehicle with the engine running. Municipal courts decide many cases based on the defendant’s own admission that they had been driving earlier.

June 9, 2015

U.S. Supreme Court Ruling Limits Police Authority During Traffic Stops

by Evan M. Levow

A recent ruling by the U.S. Supreme Court, Rodriguez v. United States, establishes limits on police authority during traffic stops. The court ruled that an officer’s authority over the driver ends once the officer accomplishes the “mission” of the traffic stop, which in this specific case involved writing a warning ticket for a minor traffic violation. Anything that occurs after the “mission” is complete violates the Fourth Amendment prohibition on unreasonable searches and seizures. Since many DWI cases begin with a traffic stop for a minor infraction, this ruling could have a significant impact. At the same time, it still allows police to conduct further investigations, such as field sobriety testing, if they can show probable cause to suspect DWI.

A police officer pulled the defendant over for driving on the shoulder of a highway. He questioned the defendant and his passenger, ran a criminal check on the defendant’s license, and issued a warning ticket. While he acknowledged that he had completed the purpose of the stop, he did not let the defendant go. Instead, he ordered the defendant and the passenger out of the vehicle and made two passes with a drug-sniffing dog. On the second pass, the dog alerted to something in the vehicle, which turned out to be methamphetamine.

The drug-sniff search prolonged the traffic stop for an additional seven or eight minutes after the officer wrote the ticket. The defendant moved to suppress the evidence from the search of his vehicle, arguing that the officer lacked probable cause. The trial court denied the motion, finding that, while the officer lacked probable cause to search for drugs, the seven- or eight-minute extension of the stop was a minimal intrusion on the defendant’s rights and was therefore permissible. The court of appeals affirmed this ruling.