Defending the Case

March 19, 2017

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

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.

March 2, 2017

New Jersey Court Rules on “Speedy Trial” Claim in Refusal Appeal

by Evan M. Levow

The Sixth Amendment to the U.S. Constitution guarantees multiple rights in criminal cases. New Jersey does not treat driving while intoxicated (DWI) as a criminal offense, but the courts of this state have extended some of the Sixth Amendment’s protections to DWI cases, including “the right to a speedy and public trial.” A defendant who believes they have been denied this right can challenge the indictment. The U.S. Supreme Court has identified several factors to consider in this sort of challenge, and New Jersey courts have held that the denial of the right to a speedy trial should result in the dismissal of the charges. The Appellate Division reviewed these factors last summer in State v. Kurek, in which a DWI defendant sought the dismissal of a case that lasted almost three years.

The U.S. Supreme Court’s 1972 ruling in Barker v. Wingo identified four factors that courts should consider regarding the right to a speedy trial: (1) the length of and (2) the reasons for the delay, (3) the circumstances of the defendant’s assertion of the right to a speedy trial, and (4) the prejudice, if any, to the defendant’s interests as a result of the delay. The court did not specify an amount of time that should be considered reasonable, preferring to allow courts to look at the circumstances of each case. The New Jersey Supreme Court has stated a general principle, in 2013’s State v. Cahill, that a court should consider the remaining Barker factors if the delay lasted more than a year.

Delays that are caused by the prosecution or by the court itself weigh in favor of the defendant, unless the court concludes that “the delays “were reasonably explained and justified.” A “neutral reason for delay such as . . . a heavy caseload” weighs in the defendant’s favor, although not as much as fault on the part of the government. If a court finds that the defendant is responsible for the delay, the defendant’s challenge is not likely to succeed.

February 13, 2017

Can a New Jersey DWI Defendant Claim “Insanity” in Court?

by Evan M. Levow

Defendants charged with criminal offenses in New Jersey can raise a variety of defenses. These are specific claims or arguments asserting that, even if the allegations against the defendant are correct, the defendant is not criminally liable. Many defenses are derived from the common law, and the New Jersey Code of Criminal Justice (CCJ) also defines various defenses. Since driving while intoxicated (DWI) is an offense under the Motor Vehicle Code, rather than the CCJ, courts have addressed whether common-law defenses are available in DWI cases on a case-by-case basis. The insanity defense involves the claim that a defendant was incapable of understanding the wrongful nature of their conduct at the time. A Law Division court considered the question of how this might apply to a DWI case at some length in State v. Inglis in 1997.

Insanity is a common-law affirmative defense in New Jersey. When a defendant raises a defense in a criminal case, the prosecution must rebut the defense as a part of their burden of proving guilt beyond a reasonable doubt. An affirmative defense, however, partially shifts the burden to the defendant, who must prove the elements of the defense by a preponderance of the evidence.

New Jersey uses the M’Naghten rule to identify what a defendant raising the insanity defense must prove in court. The rule derives from an 1843 English case in which the defendant killed the British Prime Minister’s secretary, falsely believing that the secretary was involved in a conspiracy against him. Under this rule, everyone is presumed to be sane, unless they can prove that, at the time of the offense, they suffered from a “defect of reason” or “disease of the mind,” which kept them from either “know[ing] the nature and quality of” their actions, or from “know[ing] what [they were] doing was wrong.” This is, by design, a difficult standard of proof.

January 14, 2017

New Jersey Law Requiring Police to Use Dashboard Cameras Remains Unfunded

by Evan M. Levow

In 2014, the New Jersey Legislature passed a bill, A2280, mandating dashboard video cameras for all new police vehicles used in traffic enforcement. The Governor signed the bill into law in September of that year, but as of mid-2016, the widespread use of dashboard cameras is unlikely to become a reality anytime soon. Dashboard camera evidence can be crucial for defendants charged with driving while intoxicated (DWI) and other traffic offenses. The fate of the new law, however, comes down to money. A2280 provided funding for the mandate by increasing the $100 surcharge imposed in DWI cases by $25. After a New Jersey township complained that the additional surcharge was insufficient to cover the cost of the cameras, a governmental body known as the Council on Local Mandates (CLM) ruled that A2280 is an “unfunded mandate,” and therefore it is in violation of the New Jersey Constitution. The ruling also invalidated the increased surcharge imposed by A2280. The CLM left open the possibility of reviving the bill, most likely through new legislation.

Under New Jersey’s DWI statute, prosecutors can prove that a defendant was intoxicated or impaired in multiple ways. A blood alcohol content (BAC) of 0.08 percent or higher creates a presumption of intoxication, but even without this kind of evidence, a police officer can testify about their observations of the defendant. They frequently testify about a defendant’s appearance, stating that they looked “glassy-eyed” or “flushed,” their behavior, and their performance on field sobriety tests. This type of evidence essentially asks municipal court judges to decide who is more credible between a police officer and a DWI suspect. Video evidence of a traffic stop, while not always helpful to the defense, can directly contradict an officer’s testimony about a defendant or even challenge the justification for the traffic stop itself.

The original sponsor of A2280 was motivated by his own experience with a traffic stop that led to charges of DWI and refusal to submit to breath testing. Video footage from a dashboard camera in the officer’s patrol car differed significantly from the officer’s description of what occurred during the stop. The charges were dismissed, and the officer eventually faced criminal charges, including perjury. A2280 requires municipal police departments to equip all newly acquired vehicles that are “primarily used for traffic stops” with dashboard cameras. It adds an additional $25 to the DWI surcharge to fund the acquisition of the cameras.

December 12, 2016

Allegations of Record Tampering Could Affect 20,000 New Jersey DWI Convictions

by Evan M. Levow

In criminal prosecutions, the state has the burden of proving a defendant’s guilt beyond a reasonable doubt. This is an intentionally difficult burden, designed to protect the rights described in the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution. Although driving while intoxicated (DWI) is a motor vehicle offense in New Jersey, rather than a criminal one, most of these protections apply in DWI cases. Defendants can challenge the admissibility or sufficiency of the state’s evidence before or during trial. They can also challenge evidence on appeal or in a motion for post-conviction relief (PCR), especially if new information becomes available. Recent allegations of records tampering against an officer of the New Jersey State Police may create ample opportunities for such challenges, since the allegedly fraudulent records potentially affect 20,000 DWI cases statewide.

The New Jersey Rules of Evidence govern the use of evidence in court proceedings. One of the most important rules involves statements made outside the presence of a judge or jury, which are known as “hearsay.” A statement is considered inadmissible hearsay when it is “offered in evidence to prove the truth of the matter asserted.” In plain English, a police officer can testify about their own personal observations of the defendant but not about statements made by other people. Public records kept in the ordinary course of government business, such as reports generated by an Alcotest device, are generally excepted from the hearsay rule. This exception, however, is subject to some exceptions of its own.

A 2007 decision by the New Jersey Appellate Division, State v. Kent, addressed the use of documentary evidence in a DWI case. The court held that a chemist report describing the results of a blood test is inadmissible at trial if the defendant does not have the opportunity to cross-examine the individual who prepared the report. The case drew on the Supreme Court’s 2004 ruling in Crawford v. Washington, which addressed the admissibility of written statements or reports that are deemed “testimonial” and therefore subject to the hearsay exclusion.

November 14, 2016

New Jersey Appellate Court Considers Warrantless Blood Draw and Credibility Questions in DWI Case

by Evan M. Levow

A defendant in a New Jersey driving while intoxicated (DWI) case can appeal a negative outcome, but appellate courts are limited in their authority to review some lower court actions. A recent decision by the New Jersey Superior Court, Appellate Division illustrates two important issues in a DWI defense. The defendant in State v. Hernandez challenged the evidence that she was intoxicated, arguing that police had her blood drawn without a warrant in violation of her Fourth Amendment rights. She also, at one point in the appeal, challenged the trial court’s findings regarding the credibility of her testimony as compared to several police officers’ testimony. Limitations on the appellate court’s ability to review factual findings, as well as the timeliness of the defendant’s objections, largely determined the court’s ruling.

The “exigent circumstances” exception to the Fourth Amendment’s warrant requirement allows police to conduct a warrantless search if they reasonably believe that there is a substantial risk of the loss or destruction of evidence. Police have used this exception to justify drawing blood from a DWI suspect without a warrant. In 2013, however, the U.S. Supreme Court ruled in Missouri v. McNeely that the human body’s natural process of metabolizing alcohol is not an “exigent circumstance” justifying a warrantless blood draw. Police can still establish legitimate justifications for warrantless blood draws, but McNeely set a much higher standard than before.

November 8, 2016

BAC of 0.08 Percent or Higher Not Always Necessary to Prove DWI, New Jersey Court Rules

by Evan M. Levow

New Jersey’s driving while intoxicated (DWI) laws allow prosecutors to prove impairment by alcohol in several ways. Evidence of blood alcohol content (BAC), determined by a breath, blood, or urine test, is a well-known method. Prosecutors may also offer witness testimony, particularly testimony by an arresting officer and others who observed the defendant at the time of the arrest. The New Jersey Supreme Court has held that no particular expertise is required to form an opinion, which would be admissible in court, that a person is intoxicated based on observation of the person. The New Jersey Appellate Division recently ruled in State v. Colabella that a BAC below the legal limit for DWI did not supersede officer testimony regarding a defendant’s intoxication in a DWI case. Even though the person’s BAC was not high enough to create a presumption of impairment, the court accepted other evidence.

A BAC of 0.08 percent creates a presumption of intoxication under New Jersey law. This BAC amount is commonly known as the “legal limit” for DWI, and a DWI offense based on BAC evidence is often known as “per se DWI.” New Jersey law makes it a separate offense to refuse to submit to breath testing. This indicates how important the state considers BAC evidence, but it is not absolutely required for a DWI conviction. The DWI statute defines the offense as driving “while under the influence of intoxicating liquor” or other substances, or with a BAC of 0.08 or higher. Prosecutors can introduce evidence that someone was “under the influence” through officer testimony about how the defendant was driving, their demeanor and appearance, the odor of alcohol, and their performance on field sobriety tests (FSTs).

The defendant in Colabella challenged a DWI conviction when BAC test results showed a BAC below the legal limit. According to the Appellate Division’s opinion, an officer pulled the defendant over for an illegal turn and an expired inspection sticker. The officer testified at trial that he detected a “strong odor of alcohol” coming from the vehicle. He also stated that the defendant had “slow and slurred” speech and “blood shot and watery” eyes, all indicators of alcohol impairment. The defendant reportedly admitted to consuming one beer and some ibuprofen.

November 4, 2016

Prosecutor Appeals New Jersey Court’s Approval of DWLS Defendant’s Request for Pretrial Intervention

by Evan M. Levow

Defendants in New Jersey criminal cases may be eligible to participate in a Pretrial Intervention program (PTI), which allows them an opportunity to avoid prosecution by focusing on rehabilitation. New Jersey law classifies driving while intoxicated (DWI) as a motor vehicle offense, rather than a criminal offense, although driving while one’s license is suspended (DWLS) due to DWI can lead to a criminal charge in certain circumstances. The New Jersey Appellate Division recently heard an appeal filed by a prosecutor’s office in a criminal DWLS case, State v. Rizzitello. The prosecutor alleged that the trial court wrongfully admitted the defendant into PTI over the prosecutor’s objection. Citing a 2015 New Jersey Supreme Court decision, State v. Roseman, which established guidelines for reviewing a prosecutor’s rejection of a PTI application, the Appellate Division reversed the lower court.

The general standards for PTI programs are established by the New Jersey Code of Criminal Procedure and Rule 3:28 of the New Jersey Rules of Court. Rule 3:28 includes a list of guidelines setting forth the purposes of the program, the factors prosecutors should consider in deciding whether to admit an applicant, and various administrative procedures. PTI programs, according to the guidelines, should be available when rehabilitation could “reasonably be expected to deter future criminal behavior.” Guideline 3(i) provides examples of offenses that are likely to render a defendant ineligible for PTI. Defendants must apply for PTI within 28 days of their indictment, and prosecutors must make a decision within 25 days of receiving an application.

The New Jersey Supreme Court held in Roseman that a trial or appellate court may overrule a prosecutor’s rejection of a defendant’s PTI application if it finds that the rejection was “a patent and gross abuse of discretion” by the prosecutor. The court also noted, based in part on Guideline 3(i), that a presumption against PTI exists for “crimes that are, by their very nature, serious or heinous.” A defendant must show “something extraordinary or unusual” about their background in order to overcome this presumption. The Roseman court cited an earlier decision, 2008’s State v. Watkins, which gave examples of “serious or heinous” crimes, including violent crimes, breaches of the public trust, and “non-drug addicted individuals who sell Schedule I and II narcotics for profit.”

September 29, 2016

Use of High Beams Does Not Justify Traffic Stop, According to New Jersey Supreme Court

by Evan M. Levow

The Fourth Amendment to the U.S. Constitution prohibits police from detaining a person temporarily, or stopping a vehicle on the road, without reasonable suspicion of some sort of unlawful activity. Courts are obligated to throw out charges originating from a traffic stop, such as driving while intoxicated (DWI), if the stop violated the driver’s constitutional rights. The New Jersey Supreme Court recently considered whether this state’s high-beam statute can justify a traffic stop under the Fourth Amendment. It ruled in State v. Scriven that the stop was unconstitutional because the officer did not witness an actual violation of the high-beam statute.

The “exclusionary rule” requires courts to suppress evidence obtained by police in violation of a defendant’s Fourth Amendment rights. An officer who initiated a traffic stop must justify the stop based on a suspected traffic offense, such as erratic driving or running a stop sign. Without reasonable suspicion, the state cannot use any evidence obtained as a result of that stop. This might include the officer’s testimony about the driver’s appearance or behavior, field sobriety tests, and Alcotest results.

Although the exclusionary rule is a powerful tool for protecting a defendant’s civil rights when police overstep their authority, courts have identified some exceptions. One of these, the “community care exception,” allows police to search private property without a warrant, as well as possibly detain a person or stop a vehicle, in the course of protecting the public from a hazardous situation. A hypothetical scenario might involve a police officer stopping a vehicle to warn about a hazardous road condition and then arresting the driver based on observations that lead the officer to suspect DWI.