Defending the Case

August 24, 2017

Defendant Consented to Warrantless Blood Draw Shortly After Car Accident, New Jersey Court Finds

Under New Jersey’s driving while intoxicated (DWI) statute, a defendant is presumed to be legally impaired by alcohol if their blood alcohol content (BAC) is 0.08 percent or higher. Police in New Jersey commonly use a device known as the Alcotest to collect breath samples, which the device analyzes to measure BAC. Police may also obtain blood or urine samples to test, but state law only requires drivers to submit breath samples in DWI investigations. Obtaining a sample of blood usually requires a warrant or the person’s consent. Determining whether a defendant gave proper consent to a warrantless blood draw is a key question courts must consider. The New Jersey Appellate Division ruled on this issue earlier this year in State v. Milkosky.

The Fourth Amendment to the U.S. Constitution requires police to obtain a warrant before searching a person or their property. Drawing blood for use in a police investigation counts as a “search.” Courts have identified multiple exceptions to the Fourth Amendment’s warrant requirement. The “exigent circumstances” exception applies when police and prosecutors can demonstrate that taking the time to get a warrant from a judge would result in greater harm than the warrantless search, such as the destruction of evidence, the escape of a suspect, or harm to an officer or others.

Police have, at times, claimed exigent circumstances to justify collecting blood samples from a DWI suspect without a warrant or the suspect’s consent. Alcohol breaks down in the human body due to the process of metabolism. In 2013, the U.S. Supreme Court rejected the claim that the metabolism of alcohol in the body, by itself, satisfies the exigent circumstances exception. The decision, Missouri v. McNeely, established that a warrant or the suspect’s consent is required for most blood draws.

August 18, 2017

New Jersey Media Examine “Toughness” of State DWI Laws

by Evan M. Levow

The legal treatment of driving while intoxicated (DWI) varies from one state to another, with some states categorizing it as a criminal offense and others, including New Jersey, calling it a traffic or motor vehicle offense. Several recent media reports have questioned whether New Jersey’s DWI laws are “tough enough,” pointing to the risks allegedly posed by repeat offenders. The New Jersey Legislature has revised and amended the DWI statute many times, and several bills are currently pending that would increase some penalties and reduce others. A key question to consider when discussing the “toughness” of DWI laws is whether the purpose of these laws is to punish people who violate the law, prevent people from violating the law in the future, or some combination of the two. This particular dispute is at least as old as the legal system itself.

Every state defines DWI, in part, as driving with blood alcohol content (BAC) of 0.08 percent or higher. The differences between treating DWI as a criminal or traffic offense include the procedures courts must follow at trial, and the possible punishments resulting from a conviction. A DWI conviction in New Jersey, by itself, results in license suspension and a fine, as well as the possibility of jail time. A first-time offender with BAC of at least 0.15 percent must also install an ignition interlock device (IID) in their vehicle, both during and after the period of suspension. Second, third, and subsequent offenses also carry greater possible penalties, up to a maximum fine of $1,000, license suspension of ten years, and 180 days in jail.

In states where DWI is considered a criminal offense, penalties may be greater than in New Jersey, in terms of fine amount and length of jail sentence. The specific code section dealing with DWI in New Jersey, however, is not the only one involved in DWI enforcement. The New Jersey Motor Vehicle Code includes provisions penalizing drivers for refusing to submit to breath testing and for driving with a suspended license, as well as for circumstances like DWI with a minor passenger in the vehicle.
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July 26, 2017

New Jersey Appellate Division Addresses DWI Step-Down Provisions in Refusal Case

by Evan M. Levow

New Jersey law imposes increasingly harsh penalties for subsequent convictions of driving while intoxicated (DWI) and refusal to submit to breath testing. Penalties for both offenses may include fines, a driver’s license suspension, and the mandatory use of an ignition interlock device. A conviction for DWI may also involve jail time. State law includes “step-down” provisions, however, that lessen the severity of a sentence if a sufficient amount of time has passed since the most recent prior conviction. The New Jersey Appellate Division recently ruled on an appeal involving a defendant’s refusal conviction, which followed three DWI convictions. The court’s ruling in State v. Clapper considered whether the step-down provisions, which only mention second and third DWI offenses, apply to subsequent refusal offenses.

The New Jersey DWI statute imposes progressively harsher penalties for (1) a first DWI conviction involving a blood alcohol content (BAC) of at least 0.08 percent but less than 0.10 percent, (2) a first offense involving a BAC of 0.10 percent or higher, (3) a second offense, and (4) a third or subsequent offense. The refusal statute imposes increasing penalties for (1) first, (2) second, and (3) third or subsequent offenses. Prior DWI convictions may be used to enhance the sentence for a refusal conviction, according to the Appellate Division’s 2015 ruling in State v. Taylor, but prior refusal convictions may not be used to enhance a DWI conviction.

Under the step-down provisions, if a second DWI offense occurs more than 10 years after the first, the court must impose the sentence for a first offense. Likewise, if a third offense occurs more than 10 years after the second, the court must treat it as a second offense. This applies to both DWI and refusal convictions under the system described in Taylor. Notably, the step-down provisions do not mention subsequent convictions after a third one.

July 14, 2017

New Jersey Supreme Court Addresses Stays of Driver’s License Suspensions in DWI Appeals

by Evan M. Levow

A conviction for driving while intoxicated (DWI) in New Jersey results in a mandatory driver’s license suspension. A defendant has the right to appeal a conviction in municipal court, first to the Law Division and then to the Appellate Division. Courts have the authority to grant a stay of the driver’s license suspension pending the appeal. The New Jersey Supreme Court recently ruled on a DWI defendant’s challenge to the standards used by a lower court regarding his request for a stay. The court’s ruling in State v. Robertson finds that DWI defendants are presumed eligible for a stay when they request a trial de novo from the Law Division.

For a first-time DWI offense, when a defendant’s blood alcohol content (BAC) is at least 0.08 percent but less than 0.10 percent, the DWI statute mandates a three-month period of license suspension. If a defendant charged with their first offense had a BAC of 0.10 percent or higher, the court may set the length of the suspension between seven months and one year. A second DWI conviction results in two years of license suspension. The suspension period for a third or subsequent offense is 10 years.

Rule 7:13-2 of the New Jersey Rules of Court allows municipal judges to stay “a sentence or a portion of a sentence” while a defendant prepares an appeal. Higher courts may have the authority to grant stays under Rule 3:23-5. The New Jersey Supreme Court identified a three-part test for determining whether to grant a stay in 1982 in Crowe v. De Gioia. A defendant must establish that (1) the denial of a stay would cause “irreparable harm,” (2) the request “rests on settled law,” and (3) “greater harm would occur if a stay is not granted than if it were.”

June 30, 2017

DWI Defendant Asserts Necessity Defense in New Jersey Court

by Evan M. Levow

The state has the burden of proving a defendant’s guilt beyond a reasonable doubt in New Jersey criminal cases, as well as cases involving motor vehicle offenses like driving while intoxicated (DWI). Some defenses that a defendant can raise shift the burden of proof, requiring the defendant to produce evidence in support of their defense. These are known as affirmative defenses. The defendant’s burden of proof for an affirmative defense is a preponderance of the evidence, which is lower than the state’s burden. The affirmative defense of necessity, or justification, requires proof by a preponderance of the evidence that their commission of the charged offense was necessary, under the circumstances, to prevent an even greater harm. The New Jersey Appellate Division recently considered how this applies in DWI cases in State v. Han.

New Jersey defines the necessity defense in broad, rather unhelpfully technical terms, stating that an act that might constitute a criminal offense could be “justifiable by reason of necessity to the extent permitted by law.” Court rulings have crafted more practical guidelines for the justification defense, but they do not necessarily apply in DWI cases. As the court notes in Han, DWI is a motor vehicle offense, but the statute defining the necessity defense is found in the New Jersey Code of Criminal Justice. Not all protections afforded in criminal cases are available in motor vehicle cases.

June 14, 2017

Dismissal of Appeal in New Jersey DWI Case Reversed, Found to Be Abuse of Discretion

by Evan M. Levow

Defending against a charge like driving while intoxicated (DWI) in New Jersey requires knowledge of the DWI statute and all of its elements and requirements, as well as the court system’s procedures, rules, and schedules. The state is obligated to prove every element of the offense of DWI beyond a reasonable doubt. Both prosecutors and defendants are obligated to follow a court’s procedural requirements regarding matters like filing deadlines and court appearances. Courts may impose sanctions on a party that fails to follow these requirements, but the extent of these sanctions is limited. The New Jersey Appellate Division recently reviewed a lower court’s dismissal of a DWI appeal in State v. Figueroa. It found that the court exceeded its authority by dismissing the appeal based solely on the defendant’s absence from the courtroom for a single hearing.

New Jersey’s DWI statute requires the state to prove that a defendant was operating, had recently operated, or imminently intended to operate a motor vehicle while either “under the influence” of alcohol or drugs, or with a blood alcohol content of 0.08 percent or greater. Prosecutors may use evidence like BAC test results or testimony from police officers who observed the defendant to meet their burden of proof, but the time frame in which they can do this is limited.

Once prosecutors have filed DWI charges, the court’s scheduling system largely takes over. Once a hearing, trial, or other matter has been placed on a court’s docket, neither party can change the setting without the agreement of the other party or the approval of the court. Courts have authority to sanction parties or attorneys who miss deadlines or court appearances.

May 14, 2017

New Jersey Appellate Court Rules that Evidence in DWI Trial Was Insufficient

by Evan M. Levow

In any trial for a criminal or motor vehicle offense in New Jersey, the state has the burden of proving each element of the offense, as defined by statute, beyond a reasonable doubt. If the state fails to prove every element of a charged offense, a judge or jury is obligated to acquit the defendant. The New Jersey Appellate Division recently reversed a conviction for driving while intoxicated (DWI), finding in State v. DeCicco that the prosecution failed to prove an essential element of the offense at trial.

The elements of an offense typically consist of factual circumstances, such as a particular act by the defendant at a particular time and place, and a mental state, such as proof that the defendant acted with intent rather than with negligence. Mental state, also known as mens rea, is not a required element of DWI in New Jersey, although courts sometimes accept evidence of “intent to drive” in the absence of evidence that a defendant was actually driving. At a minimum, prosecutors must prove two essential elements of DWI:

(1) the act of “operat[ing] a motor vehicle”; and
(2) the commission of that act in one of two circumstances: (a) “while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug,” or (b) with a blood alcohol content (BAC) of at least 0.08 percent.

April 14, 2017

Appellate Court Considers Whether Judges May Consider Acquitted Conduct as Evidence in New Jersey DWI Case

by Evan M. Levow

The state can offer various forms of evidence to prove that a defendant charged with driving while intoxicated (DWI) was in fact impaired by alcohol or drugs, including a blood alcohol content (BAC) of 0.08 percent or greater. New Jersey law assists police and prosecutors by making refusal to submit a breath sample for BAC testing a separate offense. In an appeal of a DWI conviction, a defendant raised a question about whether a court can consider evidence related to a refusal charge that resulted in an acquittal. The defendant in State v. Pryslak had been acquitted of refusal, but the Law Division had considered evidence related to that case as “evidence of consciousness of guilt” of the DWI charge.

Even without BAC evidence, prosecutors can establish impairment through other means, such as witness testimony. This often involves having an arresting officer testify about their observations at the time of the arrest or shortly afterwards. If a defendant was driving erratically and exhibited outward signs of intoxication when questioned by an officer, this can serve as evidence of impairment. Since police are trained to identify intoxicated people, courts tend to credit their testimony more than that of other individuals who might have witnessed a person driving or behaving in a way that suggested intoxication.

The offense of refusal to submit to breath testing has different elements and therefore requires different types of evidence. The law allows a municipal judge to convict a defendant of refusal even if they did not outright refuse to provide a breath sample. Police must follow specific procedures, outlined by statute and the New Jersey Supreme Court’s decision in State v. Chun. This includes a 20-minute observation period prior to administering a breath test, during which time the defendant cannot place anything in their mouth. Evidence that a defendant refused or intentionally failed to follow police instructions, such as by repeatedly interfering with the observation period or failing to blow into the testing device properly, could serve as evidence of guilt of refusal.

March 19, 2017

DWI Defendant Alleges Violation of New Jersey Rules Regarding Sequestration of Witnesses

by Evan M. Levow

The legal systems of the U.S., New Jersey, and other states have developed rules and procedures regarding trials. The New Jersey Rules of Evidence (NJRE) establishes standards for the admissibility of various types of evidence, including testimony and documentary evidence, as well as procedures for questioning witnesses at trial. Any party to a case can ask the court to sequester witnesses, meaning that witnesses expected to testify at trial cannot see other witnesses’ testimony or discuss the case with others. The Appellate Division ruled last year on a driving while intoxicated (DWI) defendant’s claim that prosecutors violated a sequestration order in State v. McMahon.

NJRE 615 simply states that any party may request an order for sequestration of witnesses, or that the court can issue such an order on its own motion. This means that witnesses must remain outside of the courtroom during other witnesses’ testimony, and that they cannot discuss their upcoming testimony with other witnesses. Courts may hold witnesses in contempt if they violate a sequestration order. In a 1992 decision, Morton Bldgs. v. Rezultz, the New Jersey Supreme Court described “the purpose of sequestration” as being “to discourage collusion and expose contrived testimony.”

Rule 615 of the Federal Rules of Evidence goes into more detail about exceptions to sequestration. A defendant, for example, cannot be sequestered from their own case. Anyone found by the court to be “essential to presenting the party’s claim or defense” also cannot be sequestered. The federal rule is not binding in New Jersey state courts, but it is useful for a general understanding of how the rule works.
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March 6, 2017

New Jersey DWI Defendant Challenges Alcotest Results and Officer’s Observations as Evidence at Trial

by Evan M. Levow

The New Jersey statute defining the motor vehicle offense of driving while intoxicated (DWI) gives prosecutors several options for proving a defendant’s guilt. They can introduce evidence of blood alcohol content (BAC) above the “legal limit” established by law, and they can also introduce other evidence to show that a driver was impaired by alcohol or drugs. A recent decision from the New Jersey Superior Court, Appellate Division considered a defendant’s challenge to the sufficiency of the evidence introduced against him at trial. The decision in a recent case addressed both BAC evidence and observational evidence from police officers who were present at the time of the defendant’s arrest.

A BAC of at least 0.08 percent creates a legal presumption that a driver was impaired within the meaning of the DWI statute. Police use a device known as the Alcotest to collect breath samples in order to determine BAC. A 2008 decision by the New Jersey Supreme Court, State v. Chun, established specific procedures that police must follow prior to and during the collection of breath samples with an Alcotest. A failure to follow these procedures by police can result in the suppression of BAC evidence at trial, possibly followed by the dismissal of the DWI charges. At the same time, a failure to follow police instructions by a driver can result in a charge of refusal to submit to breath testing.

Even if a DWI suspect refuses to submit breath samples, the state can introduce testimony by the arresting officer, the officer who administered the Alcotest, and other witnesses to establish that a defendant was “under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug.” This might include observations of a defendant’s physical appearance and behavior, such as “glassy eyes” or “slurred speech.” An officer can testify about detecting the odor of alcohol, as well as a defendant’s performance, or lack thereof, on field sobriety tests.