Defending the Case

August 22, 2016

Defendant in New Jersey DWI Case Challenges Admissibility of Alcotest Results, Claiming Spoliation of Evidence

The state has the burden of proving that a defendant is guilty of an alleged criminal or motor vehicle offense beyond a reasonable doubt. The New Jersey court system has rules governing the admissibility of evidence, and a defendant may object to certain evidence for a wide range of reasons. In cases of alleged driving while intoxicated (DWI), defendants often challenge the results from an Alcotest device, which measures a person’s blood alcohol concentration (BAC). The New Jersey Appellate Court recently ruled on a DWI defendant’s challenge to the admission of Alcotest evidence during his trial in State v. Patel. The defendant did not challenge the test itself or the results. Instead, he argued that the state had violated his due process rights by failing to preserve surveillance video footage from within the police station taken at the time of the test.

The use of an Alcotest device by police in DWI investigations is subject to multiple mandatory procedures, many of which were established by the New Jersey Supreme Court in a 2008 decision, State v. Chun. Prior to administering the test, an officer must observe the suspect for a continuous 20-minute period. During that time, the officer must make certain that the suspect does not eat or drink anything, place anything else in their mouth, touch their mouth, or regurgitate anything into their mouth. The defendant in Patel argued that surveillance footage would show that the officer failed to meet this observation requirement.

In evaluating the defendant’s challenge to the Alcotest results, the Appellate Division reviewed case law regarding the state’s duty to preserve evidence and its duty to provide evidence to a defendant. The U.S. Supreme Court ruled in 1963’s Brady v. Maryland that the Due Process Clause of the Fourteenth Amendment requires the state to provide exculpatory evidence in its possession to a criminal defendant. New Jersey has applied the same rule to traffic offenses, including DWI, in cases like 2012’s State v. Carrero. These decisions leave it to the state to determine whether evidence is exculpatory or not. In practice, defendants must often take affirmative steps to identify and request—or demand—such evidence from prosecutors.

August 16, 2016

New Jersey Appellate Court Considers DWI Defendant’s “Confusion” Defense

by Evan M. Levow

New Jersey’s implied consent law states that a person who operates a motor vehicle on the public streets and highways of this state is deemed to have consented to providing breath samples during investigations of suspected driving while intoxicated (DWI). Prior to collecting a breath sample in this situation, a police officer must read a “Standard Statement” explaining the law and the consequences of refusing to submit a sample. Penalties for refusal can include license suspension, monetary fines, and the use of an ignition interlock device. A defendant appealed his refusal conviction under the “confusion doctrine,” which the New Jersey Supreme Court described in a 1987 decision, State v. Leavitt. The Appellate Division rejected this argument in June 2016 in State v. Byrne, holding that the “confusion doctrine” only applies to refusal cases in very limited circumstances.

Law enforcement officers throughout the country are required to read a list of rights to a person during or shortly after their arrest. The U.S. Supreme Court established this obligation in its 1966 decision in Miranda v. Arizona. This list of rights, which begins with the familiar phrase “You have the right to remain silent,” is commonly known as “Miranda rights.” The process of reading those rights to someone is sometimes called “Mirandizing” them.

The Standard Statement used in DWI arrests in New Jersey is significantly different from the Miranda statement. While the Miranda statement discusses an individual’s Fifth Amendment right against self-incrimination—i.e., the “right to remain silent”—and the right to representation by an attorney, the Standard Statement says that these rights do not apply with regard to the taking of a breath sample.

July 24, 2016

New Jersey Driver Found Sleeping in His Car Acquitted of DWI After Judge Finds Prosecutors Failed to Prove He Intended to Drive

by Evan M. Levow

In order to convict someone of driving while intoxicated (DWI) in New Jersey, prosecutors do not necessarily have to provide direct evidence that the defendant was driving a car. This state’s DWI law, as interpreted by the courts, only requires proof that a defendant had control of a vehicle and had recently driven or intended to drive. A recent DWI trial involved a driver found sleeping in his car with the engine running. A municipal judge acquitted him of DWI after finding that the state had failed to prove that the defendant had driven the vehicle to that location himself, or that he intended to drive the vehicle.

The New Jersey DWI statute makes it a traffic offense to operate a motor vehicle while under the influence of alcohol or various drugs. Many DWI arrests begin with a traffic stop, in which a police officer witnesses a driver operating a vehicle in a way that leads them to suspect DWI. This is far from the only way an officer can develop reasonable suspicion of DWI, however. Some situations may present a reasonable inference that an individual has recently driven their vehicle while intoxicated, such as when an officer responds to the scene of a recent auto accident and observes the driver’s behavior.

The present case involved a situation in which the arresting officer did not witness the defendant driving, and also the defendant was arguably doing something responsible: waiting to sober up before driving. In this particular case, the defendant was waiting in his vehicle with the engine running. In January 2016, the arresting officer found the defendant asleep in his car, which was parked outside an Elks Lodge. The officer arrested the defendant, who was later charged with DWI.

July 20, 2016

Dashcam Videos from New Jersey Police Vehicles Are Public Record, According to Appellate Division Ruling

by Evan M. Levow

In any prosecution by the state, it is critically important that a defendant be able to review any and all evidence that could be used against them in court. A long series of court rulings has established defendants’ right to this evidence. Unfortunately, prosecutors and police are not always forthcoming with evidence. In driving while intoxicated (DWI) cases, footage from police dashboard cameras, also known as mobile video recorders (MVRs), can sometimes help a defendant rebut the state’s charges. According to a ruling issued by the New Jersey Appellate Division in late June 2016, Paff v. Ocean Cnty. Prosecutor’s Office, these videos are part of the public record. This ruling could be a double-edged sword for DWI defendants, however. They might be able to access their own MVR footage more easily, but so can anyone else.

The common-law right of access, as described by the U.S. Supreme Court in Nixon v. Warner Comms. in 1978, holds that the public has “a general right to inspect and copy public records and documents.” Statutes like the federal Freedom of Information Act (FOIA) and the New Jersey Open Public Records Act (OPRA) also address public access to government records. This is different from a defendant’s right to information specific to their case. In some situations, the government may have a legitimate reason to withhold information from the general public that they must provide to a defendant. Since the Ocean County ruling expands the public’s right to obtain information from the government, it is reasonable to conclude that it can benefit people charged with DWI and other offenses.

The downside to the ruling is that making MVR footage available to the public has implications for DWI defendants’ privacy rights. Footage of a traffic stop, potentially including field sobriety tests, could cause embarrassment or other negative outcomes. This is especially worrisome if video footage is released while a DWI case is still pending, or after an acquittal or a dismissal of charges.

July 1, 2016

New Jersey Court Rejects “Pathological Intoxication” Defense in DWI Case

by Evan M. Levow

Prosecutors can offer evidence of impairment by several means other than alcohol in driving while intoxicated (DWI) cases, such as illegal drugs, prescription medications, or even certain over-the-counter medications. In one recent DWI case in New Jersey, a defendant claimed that, at the time of her arrest, she was having a reaction to sleeping pills and was not aware that she was driving. This is known as “pathological intoxication,” but while it might seem like a person in this situation lacks the same level of culpability as in other cases, New Jersey law does not allow it as a defense in DWI cases.

The New Jersey Code of Criminal Justice (CCJ) defines “pathological intoxication” as being “grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible.” It is considered a type of “involuntary intoxication,” which New Jersey law contrasts with “self-induced intoxication.” To understand why New Jersey courts do not allow pathological or involuntary intoxication as a defense in DWI cases, it is important to know how an involuntary intoxication defense affects criminal cases.

New Jersey courts have held in criminal prosecutions that involuntary intoxication is not a defense unless the statute specifically allows it. (See, for example, State v. Kotter.) The key question when a defendant claims involuntary intoxication is whether or not the law requires the state to prove that the defendant had a certain “mental state,” meaning, for example, acting intentionally or recklessly.

June 15, 2016

Conditional Guilty Plea Required in New Jersey DWI Cases to Preserve Certain Issues for Appeal, According to Court

by Evan M. Levow

A defendant charged with driving while intoxicated (DWI) in New Jersey may choose to plead guilty or may face a trial before a municipal judge. If the judge finds them guilty, they may be able to appeal to the New Jersey Superior Court, Law Division, and from there to the Appellate Division and the New Jersey Supreme Court. A defendant can also appeal a municipal court’s denial of a pretrial motion, but this requires entering a conditional guilty plea. The New Jersey Rules of Court (NJRC) include separate provisions for appealing the denial of a motion to suppress, which asserts constitutional rights under the Fourth Amendment, but courts have held that this type of appeal also requires a conditional plea of guilty. In February 2016, the Appellate Division ruled in State v. Ricca that a DWI defendant must conditionally plead guilty in order to appeal the denial of a suppression motion.

A “conditional plea” is one in which a defendant reserves the right to appeal on specific issues. In criminal cases, Rule 3:9-3(f) of the NJRC states that a defendant must enter a conditional plea of guilty in order “to appeal from the adverse determination of any specified pretrial motion.” If the appeal is successful, the defendant can withdraw their plea. Rule 3:5-7(d) states that a defendant can appeal the denial of a motion to suppress even if they have pleaded guilty in the case. This seems to differ from the more general rule, but the Appellate Division held in 1981’s State v. Morales that this sort of appeal also requires a conditional plea of guilty. The New Jersey Supreme Court reiterated this holding in 2003’s State v. Greeley.

A separate set of rules in the NJRC governs proceedings in municipal court, which are not considered “criminal” cases under state law. The rules regarding appeals of pretrial motions, however, are basically identical to those for criminal cases. Rule 7:6-2(c) establishes a conditional guilty plea as a prerequisite for an appeal of a pretrial motion. Rule 7:5-2(c)(2) states that a defendant can appeal a motion to suppress even after pleading guilty. The Greeley decision included this rule with Rule 3:5-7(d) in finding that a defendant must enter a conditional plea.

June 13, 2016

Uncounseled Guilty Plea Should Not Count as a Prior Offense in New Jersey DWI Case, According to Appellate Division

by Evan M. Levow

New Jersey courts have established various rules that protect defendants’ Sixth Amendment rights in driving while intoxicated (DWI) cases. One such rule, established by the New Jersey Supreme Court in 1990 in State v. Laurick, mitigates certain penalties imposed on a DWI defendant if they pleaded guilty in a prior DWI case without an attorney, and they were not given the opportunity to waive their right to counsel. The New Jersey Appellate Division applied this rule earlier this year in State v. Donnelly, reversing a DWI defendant’s jail sentence and remanding the case to the trial court.

Penalties for a DWI conviction vary, in part, based on a defendant’s number of prior DWI convictions. A first offense includes a penalty of up to 30 days in jail. For a second offense, state law imposes a minimum jail term of 48 hours, up to a maximum of 90 days. A third or subsequent offense carries a mandatory minimum jail sentence of 180 days. The Laurick decision set limits on courts’ ability to use prior uncounseled guilty pleas to impose enhanced jail sentences in DWI cases. The court cited a 1971 case, Rodriguez v. Rosenblatt, which held that defendants have a right to counsel whenever they face a “consequence of magnitude,” which includes a jail sentence of any length.

The defendant in Laurick was arrested for DWI in 1985. He had a prior DWI conviction from 1982, in which he pled guilty without an attorney. He stated that he was unaware of his right to counsel at that time, and that the court did not advise him of this right. He was sentenced in 1987 as a first offender with regard to the jail term, on the basis that the 1982 guilty plea should not count as a prior conviction. The New Jersey Supreme Court upheld this sentence in 1990.

June 2, 2016

New Jersey Supreme Court Declines to Find that the Constitution Requires Jury Trials in Third-Offense DWI Cases

by Evan M. Levow

The Sixth Amendment to the U.S. Constitution guarantees a trial by jury in criminal cases, but courts have never applied this guarantee to all prosecutions. A defendant charged with a “petty” offense is not entitled to a jury trial, according to a long line of court decisions at both the state and federal levels. New Jersey courts have long held that jury trials are not required in driving while intoxicated (DWI) cases. A DWI defendant sought to revisit this issue in 2016, arguing that amendments to New Jersey’s DWI statute had made third-offense DWI a “serious” offense, rather than a petty one. The New Jersey Supreme Court, ruling in State v. Denelsbeck, rejected this argument, but it warned that the statute’s current penalties were the maximum possible for a petty offense.

Even though the Sixth Amendment, as written, does not appear to exclude any criminal proceedings from its guarantee of a jury trial, court rulings going back to the 19th century and earlier have held that it does not apply to petty offenses. The term “petty offense” has never had a distinct definition. In a 1937 ruling, District of Columbia v. Clawans, the U.S. Supreme Court held that a petty offense may be identified, in part, by the “severity of the punishment” associated with the offense. The court held in Baldwin v. New York (1970) that an offense with a potential penalty of more than six months’ imprisonment cannot “be deemed ‘petty’ for purposes of the right to trial by jury.”

A 1989 U.S. Supreme Court decision, Blanton v. N. Las Vegas, found that a jury trial was not required under Nevada’s DWI statute, in part because the maximum term of imprisonment was six months. The court held that the maximum term of imprisonment is the most important factor in determining whether an offense is “petty.” It allowed for the possibility, however, that additional penalties attached to a maximum jail sentence of six months or less could turn a “petty” offense into a “serious” one. This was the defendant’s central claim in Denelsbeck.

May 16, 2016

“Protective Sweep” Exception Allowed Police to Search New Jersey DWI Suspect’s Car, According to Court

by Evan M. Levow

The Fourth Amendment to the U.S. Constitution prohibits most warrantless searches by police, requiring them first to obtain a warrant from a judge or magistrate. Various exceptions to this rule apply during traffic stops, when police can act on anything they see, hear, or smell that gives them a reasonable suspicion of illegal activity. This could result in a traffic stop for suspected driving while intoxicated (DWI) leading to more serious charges, or a stop for a lesser traffic violation leading to a suspicion of DWI. A defendant in a New Jersey DWI case, State v. Mercado, challenged the search of his vehicle, which police claimed was justified under the “protective sweep” exception to the Fourth Amendment’s warrant requirement.

The protective sweep exception is largely based on another Fourth Amendment exception known as the plain-view doctrine, which holds that police do not violate a person’s Fourth Amendment rights if they investigate something that they can easily see from a reasonable vantage point. If an officer stops a car because of something other than DWI, for example, the officer may be able to investigate possible DWI if an open alcohol container is visible inside the car. This also applies to something an officer can smell, such as the odor of alcohol or marijuana.

A 1983 U.S. Supreme Court decision, Michigan v. Long, addressed the plain-view doctrine in a traffic stop for suspected DWI. The officers searched the defendant’s vehicle because they “had reason to believe that the vehicle contained weapons potentially dangerous to the officers.” Instead, they found marijuana. The Supreme Court identified the protective sweep exception more specifically in 1990 in Maryland v. Buie. It held that an officer may search the immediate area when they have a specific reason to believe that another person is present who could pose a threat to themselves or others.

May 10, 2016

DWI Convictions from Outside New Jersey May Count Toward Priors Leading to Criminal Charge for Driving with a Suspended License

by Evan M. Levow

Driving while intoxicated (DWI) and related offenses, including driving while license suspended (DWLS), are considered traffic offense under New Jersey law, rather than criminal offenses. Under certain circumstances, however, the state can charge DWLS as a criminal offense with a much greater penalty. This might occur when a driver has multiple prior DWI or DWLS convictions at the time of the alleged DWLS offense. A defendant recently argued to the New Jersey Superior Court, Appellate Division that a criminal DWLS charge should not apply to him because only one prior DWI conviction was from New Jersey, and the statute therefore does not allow courts to consider out-of-state convictions. The Appellate Division rejected this argument in late April 2016 in State v. Luzhak, meaning that out-of-state convictions count toward criminal DWLS.

A conviction for DWI or DWLS as a traffic offense may result in jail time and fines, in addition to a driver’s license suspension, but the maximum penalties are generally lower than those for many criminal offenses. Absent any aggravating factors, such as involvement in an accident that causes a bodily injury to someone, the maximum penalty for a third or subsequent simple DWLS conviction is a $1,000 fine and up to 10 days in county jail. A conviction for criminal DWLS, however, results in a mandatory minimum 180-day jail sentence, the same sentence imposed for a third or subsequent DWI conviction.