Articles Posted in Defending the Case

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Driving while intoxicated (DWI) can involve other substances besides alcohol. New Jersey’s DWI statute makes it an offense to drive while under the influence of a “narcotic” or “habit-producing drug.” It does not specify that the narcotic or other drug must be illegal or illicit. Certain prescription medications can significantly impair a person’s ability to perform various functions, including driving. Defending against this type of DWI charge often involves challenging the police’s determination of impairment. Even if a person legally possesses a prescription medication, and uses it exactly as instructed by their doctor, the state could still charge them with DWI. Last month, for example, New Jersey prosecutors charged a school bus driver with DWI after a minor accident in a parking lot, alleging that she was under the influence of prescription medications.

New Jersey law identifies a level of blood alcohol content (BAC) at which a person is presumed to be impaired. It does not identify specific levels of other substances. In order to prove that a defendant was under the influence of something other than alcohol, the state usually relies on eyewitness testimony about a defendant’s appearance and demeanor at the time of their arrest. Prosecutors may also offer expert testimony from officers known as “drug recognition experts,” who are purportedly trained in recognizing signs of impairment by various drugs.

Reported cases involving “prescription medication DWI” in New Jersey appear to be rare. Cases often involve combinations of substances. For example, the defendant in a 2015 New Jersey Appellate Division case, State v. Pouch-Mendola, was reportedly taking two prescription medications that acted as “central nervous system depressants.” According to the court, she admitted to “consuming alcohol to ‘enhance’ [the] effect” of the medications. The court affirmed her conviction.
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The New Jersey statute defining the offense of driving while intoxicated (DWI) allows the state to prove impairment by substances other than alcohol. At the same time, it makes it generally easier for the state to prove impairment by alcohol, partially due to the wider availability of technologies for measuring alcohol in a person’s system. The New Jersey Legislature has written the law to allow a presumption of impairment based on chemical testing for alcohol, but not other substances. A report from last year by NJ.com indicates that the rate of DWI dismissals throughout the state has increased over the past decade. It suggests that an increase in prosecutions for driving under the influence of drugs, or “drugged driving,” could be a factor. It is difficult, if not impossible, to find any single cause for a statistic like this, but it is worth noting that drugged driving is potentially more difficult for prosecutors to prove.

State law defines DWI in two ways. First, a person commits an offense if they drive “while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug.” This requires the state to prove that a defendant was impaired, or “under the influence,” through a variety of means, such as eyewitness testimony and testimony from officers trained to identify the effects of various drugs. The second type of DWI is often known as DWI per se. It only requires proof that a person drove while their blood alcohol content (BAC) was at or above 0.08 percent. State law requires anyone suspected of DWI to submit breath samples for chemical testing to determine BAC. Refusal to submit a breath sample is a separate motor vehicle offense with penalties that are almost as serious as the penalties for DWI.

Prosecutors routinely call the arresting officer or officers to testify at DWI trials. Where alcohol is allegedly involved, an officer may testify about their observations of a defendant. This may involve the odor of alcohol, or physical signs of intoxication like bloodshot or glassy eyes, slurred speech, and difficulty with balance. An officer who conducted field sobriety tests (FSTs) can offer testimony about a defendant’s performance. Even in the absence of BAC evidence, the state can offer evidence in an attempt to prove intoxication.
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In prosecutions for alleged driving while intoxicated (DWI) in New Jersey, the state must prove each element of the offense beyond a reasonable doubt. Municipal court judges determine whether prosecutors have met their burden of proof when a case goes to trial. Last year, the New Jersey Appellate Division considered a defendant’s claim that a police officer’s failure to record video of her field sobriety tests (FSTs) should weigh in her favor. The court’s ruling in State v. Belko is a reminder that New Jersey gives prosecutors rather wide latitude in the types of evidence they may use in DWI cases.

The New Jersey DWI statute allows prosecutors to prove impairment by demonstrating that a defendant had blood alcohol content (BAC) of at least 0.08 percent, or by showing other evidence that they were “under the influence” of alcohol, narcotics, or other drugs. This could include a defendant’s performance on FSTs, their appearance or demeanor, or testimony from an officer trained in drug recognition.

Municipal judges must weight the credibility of eyewitness and expert testimony in DWI trials. This often requires subjective determinations of how a witness appears in court. As video recording becomes increasingly common, thanks in part to near-ubiquitous smartphones, more and more arrests and other incidents are recorded by one or more people. These videos sometimes serve to challenge the official story from one (or both) sides. Video evidence is often admissible in court, but the Belko case addressed the question of whether video evidence should be required.
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The legal status of cannabis, including marijuana and related products, is undergoing major changes throughout the country. More than half of all U.S. states, including New Jersey, allow the possession and use of marijuana to some extent for medical purposes under a doctor’s supervision. A handful of states have enacted laws decriminalizing the possession of small amounts for recreational use. This may involve the substitution of civil penalties for criminal ones, or the removal of all legal penalties. A bill pending in the New Jersey Legislature, the New Jersey Cannabis Regulatory and Expungement Aid Modernization Act (NJCREAMA) would remove all criminal penalties for the purchase and possession of up to one ounce of cannabis. Several provisions of the bill directly address investigations and prosecutions under New Jersey’s driving while intoxicated (DWI) law.

The New Jersey DWI statute defines the offense, in part, as driving “while under the influence of intoxicating liquor, narcotic,…or habit-producing drug.” For alcohol, the statute establishes a blood alcohol concentration (BAC) of 0.08 percent as the per se standard of impairment. State law also requires DWI suspects to submit a breath sample for BAC testing. New Jersey has no per se standard for marijuana impairment in DWI cases. Prosecutors must instead rely on circumstantial evidence and testimony from police officers trained as “drug recognition experts.” A bill introduced in February 2018, A2776, would establish a per se standard of two nanograms per milliliter, based on blood tests, but it is still awaiting a committee assignment.

Legislators first introduced NJCREAMA in the Senate in June 2018 as S2703. The Senate Budget and Appropriations Committee reported favorably on an amended version of the bill on November 26, 2018. A companion bill, A4497, was introduced in the Assembly and received a favorable report from the Assembly Appropriations Committee on the same day. This means that both committees recommend passage of the bill. In addition to legalizing small amounts of marijuana for medical use, the bill would create a new Cannabis Regulatory Commission (CRC) “to regulate personal use and medical cannabis.” It also provides for the expungement of records in certain prior marijuana cases.
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The holiday season means many great things for people in New Jersey, such as family, friends, and celebration. Since the “celebration” part of the holidays can sometimes lead to excess, police tend to step up efforts to enforce New Jersey driving while intoxicated (DWI) laws on roads during the holidays. This may include the use of roadside sobriety checkpoints. New Jersey police are allowed to stop drivers at temporary checkpoint locations to inquire about alcohol consumption and look for signs of intoxication. The ability of police to do this is strictly limited, however, by the Fourth Amendment’s prohibition on unreasonable searches and seizures. New Jersey drivers should know their rights during sobriety checkpoint stops.

The New Jersey DWI statute defines the offense primarily 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. The state may prove this by offering evidence of a defendant’s BAC obtained from a breath sample, which all drivers in New Jersey are required to provide under law, or through other evidence indicating that a defendant was impaired at the time they were operating a vehicle. Many DWI cases begin with a traffic stop based on a police officer’s suspicion that the driver is intoxicated. The Fourth Amendment requires that this be a “reasonable suspicion,” meaning that police officers cannot pull a driver over without some clear basis for suspecting DWI. To make an arrest, police must have “probable cause” to believe an offense has occurred.

Sobriety checkpoints, which allow police to stop some or all vehicles on a particular stretch of road, clearly do not involve “reasonable suspicion,” but the U.S. Supreme Court has affirmed their constitutionality. In 1990, the court held in Michigan Department of State Police v. Sitz that preventing DWI was a “substantial government interest,” that sobriety checkpoints “reasonably…advance that interest,” and that “the degree of intrusion upon individual motorists” is minimal. The New Jersey Appellate Division held that a sobriety checkpoint was constitutional in 1985 in State v. Kirk, and in 1989 in State v. Mazurek. The New Jersey Supreme Court reached a similar ruling in 2002’s State v. Carty.
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Prosecutors in New Jersey DWI cases have the burden of proving every element of driving while intoxicated (DWI) beyond a reasonable doubt. They must also ensure that the proceedings accord with a defendant’s due process rights. This includes a defendant’s right to understand the charges brought against them and the likely penalties that could result from a guilty verdict. New Jersey, along with many other states, has an implied consent statute that effectively requires drivers to submit to breath testing when ordered to do so by a police officer. A separate code section makes it a motor vehicle offense, punishable by a fine and driver’s license suspension, to refuse to submit to breath testing. The New Jersey Appellate Division recently ruled in two cases that alleged due process violations because of summonses that cited the wrong code section. In both cases, State v. Dito and State v. Horton, the summonses cited the implied consent statute, rather than the section making refusal an offense.The Fourteenth Amendment to the U.S. Constitution prohibits states from depriving persons of “life, liberty, or property, without due process of law.” One aspect of this requirement involves “fair notice” of potential criminal penalties for specific conduct. The U.S. Supreme Court has found statutes to be unconstitutional for failing to provide fair notice. In a 1964 decision, Bouie v. City of Columbia, the court held that a trespass statute did not clearly define the offense, such that the defendants knew that their conduct was illegal.

The defendants in Dito and Horton argued that New Jersey’s implied consent and refusal statutes present a similar question. The implied consent law, found in § 39:4-50.2 of the New Jersey Revised Statutes, states that anyone operating a vehicle on a public roadway in New Jersey “shall be deemed to have given his consent to the taking of samples of his breath” in DWI investigations. It does not, however, prescribe any penalty for refusing to provide a breath sample. The provisions for penalties are found in § 39:4-50.4a, which mandates driver’s license revocation and a fine.

The question presented in Dito and Horton was whether a summons for refusal that cites § 39:4-50.2 instead of § 39:4-50.4a constitutes “fair notice.” The defendant in Dito moved to dismiss the refusal charge in municipal court on this ground. The Law Division granted the motion, holding that “that the error was fatal because it failed to inform defendant of the nature of the charge against him.”

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Prosecutions for driving while intoxicated (DWI) in New Jersey often begin with a traffic stop. A police officer might pull a driver over based on a specific suspicion of DWI, or they might pull them over for another reason and then notice signs of possible impairment by drugs or alcohol. In either case, police must have “reasonable suspicion” of unlawful activity before initiating a traffic stop. The “reasonable suspicion” requirement is an exception to the Fourth Amendment’s warrant requirement. New Jersey prosecutors recently tried to justify a traffic stop that led to a DWI case under the “community caretaker” doctrine, another exception to the warrant requirement, in State v. Sutherland. The New Jersey Supreme Court had previously rejected prosecutors’ reasonable suspicion argument. On remand, the Appellate Division rejected the community caretaker argument as well. This can be a complex area of law, so it may be worthwhile to reach out to a New Jersey DWI lawyer if you have questions.

Under New Jersey law, it is a traffic offense to drive “while under the influence” of drugs or alcohol. The state can prove that a defendant was legally impaired through various means, including eyewitness testimony by the arresting officers, other officers, and “drug recognition experts.” Prosecutors can also introduce evidence of blood alcohol content (BAC) at or above the “legal limit” of 0.08 percent. Defending against a DWI charge often involves challenging the state’s evidence of impairment, but it may also be possible to challenge the justification for the traffic stop itself.

Brief detentions of individuals by police, based on reasonable suspicion of unlawful activity, are often known as “Terry stops,” after the 1968 U.S. Supreme Court decision Terry v. Ohio. Five years later, the court decided Cady v. Dombrowski, which held that police do not violate the Fourth Amendment when they find evidence of criminal activity while engaging in certain “community caretaking functions.” This refers to police activities that have no relation to “the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”
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Defending against a charge of alleged driving while intoxicated (DWI) in New Jersey requires careful evaluation of every part of the state’s case, which is why it is often wise to retain a dedicated New Jersey DWI lawyer if you are in such a situation. The state has the burden of proving guilt beyond a reasonable doubt on every element of the offense of DWI. The job of a defendant and their counsel is to challenge the state’s evidence and legal arguments. The Fourth Amendment to the U.S. Constitution prohibits police from conducting searches and seizures without a warrant, but the courts have identified numerous exceptions. A police officer may be able to justify a traffic stop if they can demonstrate “reasonable suspicion” of unlawful activity by the driver. In early 2018, the New Jersey Supreme Court rejected the state’s reasonable suspicion argument in State v. Sutherland. The court held that the officer’s suspicion was not “objectively reasonable.” It remanded the case to the Appellate Division to resolve the state’s alternative argument that the stop was justified by the “community caretaking” doctrine.

New Jersey’s DWI statute broadly prohibits the operation of a motor vehicle “while under the influence” of alcohol or drugs. It allows the state to prove impairment by alcohol in two ways: with evidence that a defendant’s blood alcohol concentration (BAC) was 0.08 percent or higher, or with other evidence indicating impairment. The statute identifies various penalties based on factors like a defendant’s BAC and their number of prior convictions. It does not make any mention of the manner in which police come to suspect that a driver is impaired.

A police officer may briefly detain a person, such as in a traffic stop, without a warrant if they have reasonable suspicion of criminal or other unlawful activity. The U.S. Supreme Court affirmed this in Terry v. Ohio in 1968. The court held that an officer’s suspicion must be based on “specific reasonable inferences…in light of his experience,” and not on an “inchoate and unparticularized suspicion or ‘hunch.’” In the context of a DWI case, an officer might testify that they witnessed a defendant driving erratically. A traffic stop that leads to a DWI charge does not have to begin with an officer’s suspicion of DWI. A police officer could stop a driver for another suspected traffic violation, such as running a red light, and then discover evidence of DWI. This becomes complicated when an officer is mistaken about traffic law.
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New Jersey DWI (driving while intoxicated) and related offenses are not considered criminal offenses. Instead, they are classified as traffic offenses, meaning that the maximum penalties, while still potentially quite onerous, are generally not as severe as in many criminal cases. A case involving alleged DWI can include criminal charges when injury or death occurs, but a defendant may also be subject to criminal prosecution merely for driving while their license is suspended (DWLS) when they have prior DWI-related convictions. The New Jersey Superior Court, Appellate Division recently considered what prior convictions are necessary for the criminal DWLS statute to apply in State v. Dougherty.

New Jersey’s criminal DWLS statute imposes a mandatory minimum sentence of 180 days in jail. The statute identifies two scenarios based on the reason for the license suspension and the defendant’s prior record.
1. An ordinary DWLS charge can become a criminal charge if the license suspension is because of a conviction for first-time DWI or refusal to submit to breath testing, and the defendant has a prior conviction for DWLS during the same period of license suspension. This provision appears to require two prior convictions: one for DWI or refusal, and one for DWLS.
2. The criminal statute may also be invoked if the reason for the license suspension is a second or subsequent DWI or refusal conviction. This provision does not require a prior conviction for DWLS, but does require multiple prior DWI or refusal convictions.

The defendant in Dougherty was charged with criminal DWLS under the second scenario identified by the statute. He was convicted of DWI in August 2015, resulting in a three-month license suspension. In November 2015, he was convicted of refusal and sentenced to a seven-month license suspension. A police officer pulled him over while driving in December 2015, during the suspension period resulting from the refusal conviction. A grand jury indicted him for criminal DWLS.
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In New Jersey, driving while intoxicated (DWI) and most related offenses are not considered criminal in nature. They are instead classified as traffic or motor vehicle offenses. Driving while license suspended (DWLS) is usually a motor vehicle offense, punishable by a fine, driver’s license suspension, and potential revocation of vehicle registration. In certain circumstances, however, DWLS is a criminal offense. Prosecutors may charge a defendant with both forms of DWLS for a single alleged incident. A defendant convicted of both offenses recently argued on appeal that the trial court should have merged the penalties. The New Jersey Appellate Division agreed earlier this year in State v. Koerner. While it affirmed the conviction, it remanded the case to the lower court for resentencing.

Under New Jersey’s motor vehicle laws, a first DWLS offense carries a fine of $500. If the offense occurs during a period of license suspension for a DWI or refusal conviction, the penalty also includes vehicle registration revocation. For a second offense, the penalty includes a $750 fine and up to five days in jail. The penalty for a third or subsequent offense is a $1,000 fine and up to ten days in jail. If a second, third, or subsequent offense occurs within five years of a prior DWLS conviction, the defendant is also subject to registration revocation. Municipal courts typically hear motor vehicle cases.

The state can charge a person with criminal DWLS in two situations: (1) when the individual has a prior traffic conviction for DWLS during a period of license suspension resulting from a DWI or refusal conviction; or (2) when the alleged offense occurs while the individual’s license is under suspension for a second of subsequent DWI or refusal conviction. In both cases, it is a crime of the fourth degree, with a mandatory minimum sentence of 180 days in county jail. New Jersey’s sentencing statute allows sentences of up to eighteen months for crimes in the fourth degree. The New Jersey Superior Court, Law Division is the venue for most criminal cases.
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