Articles Posted in DWI Information

state lineMost features of law enforcement in the U.S. operate at the state and local levels. These include traffic laws, like those related to driving while intoxicated (DWI). The legal system in New Jersey, like all states, categorizes alleged offenses based on factors like the type of activity involved and the severity of the harm allegedly caused. Major offenses are classified as felonies, and less serious offenses are considered misdemeanors. Traffic offenses are generally not considered criminal offenses at all, although they can still result in fines and jail time. New Jersey treats DWI as a traffic offense in all cases, but other states, like our neighbor, New York, take a different view. A recent case involving a New Jersey resident driving in New York illustrates the difference. An arrest for DWI, combined with a blood alcohol content (BAC) above a certain level and a prior DWI conviction, resulted in felony criminal charges.

DWI and most related offenses, such as a refusal to submit to breath testing and driving with a suspended license, are considered traffic offenses under New Jersey law. Despite the lack of the “criminal” designation, the penalties for a conviction can still be quite serious. A third or subsequent conviction for DWI, for example, results in a minimum jail sentence of 180 days, with credit for up to 90 days in a rehabilitation program. The only DWI-related offense that is considered “criminal” under New Jersey law occurs when a person drives with a suspended license, and the license suspension is due to a prior DWI conviction. This is a “fourth degree crime” and carries a mandatory minimum jail sentence of 180 days.

New York, much like New Jersey, codifies its DWI laws in the Vehicle & Traffic Law (VTL), rather than its Penal Law. The statute distinguishes among “driving while ability impaired” by alcohol, driving while intoxicated by alcohol, and “driving while ability impaired by drugs.” It identifies “driving while intoxicated per se” as driving with a BAC of 0.08 or higher, and it defines the offense of “aggravated driving while intoxicated” as either (1) driving with a BAC of 0.18 percent or higher or (2) driving while impaired with a child, age 15 or younger, in the car.

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HolidaysThe holidays are a time of happiness and celebration for many people, but law enforcement officials are aware of the risks to public safety potentially posed by too much celebration. Police departments throughout New Jersey have announced increased enforcement of state laws regarding driving while intoxicated (DWI) during the holiday season. They have many means of doing this at their disposal, from traffic stops based on a reasonable suspicion that a person might be impaired by alcohol, to roadside checkpoints intended to check drivers for DWI. While the Fourth Amendment to the U.S. Constitution limits the ability of police to stop and search people, and those limits have just as much force during the holidays as at any other time of the year, courts have allowed police to operate DWI checkpoints subject to certain requirements. We encourage everyone to enjoy the holidays and be safe, and to know their rights under state and federal laws.

New Jersey’s DWI statute makes it a motor vehicle offense to operate a vehicle “while under the influence of intoxicating liquor,” or with a blood alcohol concentration (BAC) of at least 0.08 percent. This means that police can arrest someone on suspicion of DWI, and prosecutors can pursue charges, even without evidence of a BAC above the legal limit. To do so, they must present other types of evidence, such as testimony from an officer who observed a defendant at or near the time of their arrest and can describe behavior, appearance, or other conditions indicative of intoxication.

The holiday season often features parties in bars and other public venues and in people’s homes. Police across the state are participating in the two-week “Drive Sober or Get Pulled Over 2016 Year End Holiday Crackdown,” a program supported by the U.S. National Highway Traffic Safety Administration (NHTSA) and the New Jersey Division of Highway Traffic Safety (DHTS). Local law enforcement agencies may obtain grants from the DHTS to assist in implementing the campaign, which includes “saturation patrols” by police and increased use of roadside DWI checkpoints.

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passport stampAmerica, as the saying goes, is a nation of immigrants, meaning that most Americans living today are descended from people who came here from another country. People still come to New Jersey and elsewhere in the country from all over the world. Traveling or moving to the U.S. usually requires a visa issued by the federal government. Aside from foreign diplomats and consular officials, the laws of the U.S. fully apply to anyone with a visa, and certain legal troubles can have a significant impact on a visa holder’s ability to remain in the U.S. The Department of State (DOS) uses a process known as “prudential visa revocation,” which allows it to revoke a person’s visa if they are arrested for driving while intoxicated (DWI). This could apply even if the person is never convicted of DWI.

Visas generally fall into two categories:  immigrant visas and nonimmigrant visas (NIVs). Immigrant visas, commonly known as “green cards,” allow people to become permanent residents and possibly apply for naturalization as U.S. citizens. The government issues NIVs to people to come to the U.S. for a particular purpose, such as a job or school. NIV holders must return home when their visas expire.

Federal immigration law identifies multiple categories of people who are “inadmissible” to the U.S., meaning that the government may not issue them visas. These include a history of prior immigration violations, convictions for certain “aggravated felonies,” national security concerns, and “health-related grounds.” These grounds apply to both immigrant visas and NIVs, but NIVs are generally more susceptible to revocation. The DOS and its consular officers have the authority to revoke a NIV “at any time, in [their] discretion.”

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parking signIn 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.

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The_Jury_(1861)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.

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State_border_sign_on_NY_17Driving 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.

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Peggy_Marco [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayA DWI conviction in New Jersey has numerous repercussions, starting with a three- to seven-month driver’s license suspension for a first offense. Courts may also impose a jail sentence for DWI and order a defendant to complete various services. These penalties are prescribed by the New Jersey Motor Vehicles and Traffic Regulations Code, but other areas of New Jersey law may also impose consequences for a DWI conviction. Defending a DWI case requires understanding all the ways in which the case could affect your life. The New Jersey Appellate Division reviewed the consequences of a DWI conviction for public pension benefits earlier this year in Tavaglione v. Bd. of Trustees, Police and Firemen’s Ret. Sys.

Most public employees in New Jersey at the state, county, and city levels are eligible to participate in pension funds established under state law. A pension is a type of retirement account. An employee makes contributions to the pension account from their wages. The employer establishes a trust to manage these contributions for the employees’ benefit. Upon an employee’s retirement, they receive periodic benefit payments.

Laws like the federal Employee Retirement Income Security Act (ERISA) and the New Jersey Public Employees’ Retirement-Social Security Integration Act establish guidelines that employers must follow in the management of pensions and other retirement funds. New Jersey, along with other states, also sets guidelines that public employees must follow in order to receive benefits. New Jersey law states, first and foremost, that pension benefits are dependent upon “the rendering of honorable service by a public officer or employee.”

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jingoba [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayPretrial intervention (PTI) is available to some criminal defendants, typically people with no prior convictions, that can potentially result in the dismissal of all charges and, in many cases, the expungement of all records of the arrest and charges. Admission to the PTI program typically requires approval from the PTI program director and the prosecutor. PTI is only available for criminal defendants, so people charged with a traffic offense like driving while intoxicated (DWI) cannot apply for the program. Driving while license suspended (DWLS) based on a prior DWI conviction, however, could be considered a criminal offense. The New Jersey Appellate Division recently heard several cases involving the PTI applications of people charged with criminal DWLS.

The PTI program, according to state law, provides “early rehabilitative services or supervision” with the goal of “deter[ring] future criminal behavior,” easing criminal courts’ dockets, and “permitting the least burdensome form of prosecution possible” for defendants charged with certain offenses. Under Rule 3:28 of the New Jersey Rules of Court, a judge may postpone criminal proceedings for a maximum of thirty-six months once a defendant has been accepted into the PTI program. If the defendant successfully completes the program, the court dismisses the charges. If the defendant fails to meet the conditions of the program, the court can place the case back on its trial docket.

DWLS becomes a fourth-degree criminal offense if it occurs during a suspension period that results from a second or subsequent DWI conviction or a prior DWLS conviction. The statute includes a mandatory minimum jail sentence of 180 days.
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Pete Linforth [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayLegal prohibitions against marijuana are falling aside all across the country, as a majority of U.S. states now permit at least limited use of the drug for medical purposes. New Jersey has enacted a medical marijuana statute that allows use with a prescription and under a doctor’s supervision. A handful of states have legalized marijuana entirely, while other states, like New York, have decriminalized its use. This means that, while recreational marijuana use is still against the law in New York, it is no longer considered a criminal offense. Driving under the influence of drugs (DUID) has always been a concern for law enforcement alongside driving while intoxicated (DWI). Widespread legalization of marijuana for various uses has led to renewed attention to the issue, as well as attempts to amend existing laws in New Jersey and elsewhere.

Marijuana remains a Schedule I controlled substance under New Jersey law, but the Compassionate Use Medical Marijuana Act made the cultivation, sale, possession, and use of marijuana legal for specific purposes, under strict medical guidelines. Under current New Jersey law, the offense of DWI includes driving while under the influence of a “narcotic, hallucinogenic or habit-producing drug.” The statute does not specify an amount of any particular drug that must be present in a person’s body at the time they were driving, with the well-known exception of alcohol. A person with a blood alcohol concentration (BAC) of 0.08 percent is presumed to be legally impaired. This is known as a “per se standard.” Some states do identify a per se standard for particular drugs, such as Pennsylvania’s requirement of one nanogram of THC, the active component of marijuana, per milliliter of blood.

At least 11 states have adopted “zero tolerance” DUID policies, meaning that any amount of an illegal controlled substance in a person’s system meets the per se standard for impairment. Since different drugs remain in a person’s bloodstream for different periods of time, most states use tests that detect the presence of the drug or byproducts created as the body metabolizes the drug, known as metabolites. New Jersey’s DWI statute makes no specific mention of either a per se standard or a zero tolerance policy.

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By Tomwsulcer (Own work) [CC0], via Wikimedia CommonsIn New Jersey, driving while intoxicated (DWI) is considered a motor vehicle offense, not a criminal offense. This has important implications for how a DWI case may proceed. In most DWI cases, jail time is largely at the court’s discretion, but fines and driver’s license suspensions are not. One situation exists, however, in which an offense directly related to DWI is considered a criminal offense, which has a mandatory minimum sentence of 180 days. This occurs when a person is charged with driving while license suspended (DWLS), when the suspension is due to a conviction for DWI or certain related offenses. A New Jersey appellate court recently considered an appeal of a conviction under this statute in State v. Wagner.

A first-time DWI conviction carries a mandatory license suspension of three months. The length of the suspension increases for subsequent convictions, up to a maximum of 10 years. Other offenses may also lead to the suspension of one’s driver’s license, so the state has a DWLS statute that classifies the general act of driving with a suspended license as a motor vehicle offense. Penalties include a fine and, in some circumstances, the revocation of the defendant’s motor vehicle registration.

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