Articles Posted in DWI Information

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Operating any kind of powered vehicles, such as a car, truck, boat, or airplane, can be dangerous to yourself and others around you. You need a license to drive a motor vehicle on public roads in New Jersey. Driving while intoxicated (DWI) is a motor vehicle offense under New Jersey law that can result in license suspension, fines, and possible jail time. Aircraft can be even more dangerous than cars or trucks, so the requirements for becoming a pilot are far stricter than most types of driver’s licenses. The penalties for operating an aircraft while under the influence of drugs or alcohol — also known as flying while intoxicated (FWI) — can result in penalties under both state and federal law.

Who Is Legally Allowed to Fly a Plane?

Each state handles driver’s licenses for its residents. The Federal Aviation Administration (FAA) deals with pilot licensing, known as certification, for the entire country. The type of certification depends on factors like the size of the aircraft and the number of passengers. Everyone starts with a student license. From there, the options include:
– Recreational pilots: Limited to small aircraft, short distances, and a small number of passengers;
– Private pilots: Can fly small aircraft with passengers for business purposes; and
– Commercial pilots: Can operate large commercial jets.

What Is Flying While Intoxicated?

Both state and federal law prohibit FWI. New Jersey defines the offense as operating an aircraft “while under the influence of or using intoxicating liquors, cocaine or other habit-forming drugs.” Unlike the DWI statute, it does not specify a blood alcohol content (BAC) amount at which a pilot is presumed to be impaired. Federal law handles that aspect of the offense.
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New Jersey’s driving while intoxicated (DWI) law applies to most motor vehicles, such as cars, trucks, motorcycles, and e-bikes. Riders of non-motorized bicycles are not subject to New Jersey DWI laws. A separate statute addresses operating a watercraft while under the influence of alcohol or drugs. The boating while intoxicated (BWI) statute is similar to the DWI law, but not identical. The fact that the two laws have different penalties has some important effects. Courts can use prior DWI convictions to enhance the penalties for a new DWI offense. The New Jersey Appellate Division has held that past BWI convictions do not count as prior convictions when determining the penalties for a DWI conviction.

The structure of the BWI law is almost identical to the DWI statute. It prohibits operating a “vessel” in two situations:
– While under the influence of drugs or alcohol; or
– With blood alcohol content (BAC) of 0.08 percent or more.
It defines “vessel” as “a boat or watercraft…used or capable of being used as a means of transportation on water.” A “power vessel” is one that has “machinery for propulsion.” The BWI statute applies to power vessels and vessels that are at least twelve feet long. A canoe that is less than twelve feet long, for example, would not be covered by the law since it is not a power vessel. A motorboat of any length would be covered.

The BWI statute also determines penalties the same way as the DWI statute. It establishes four levels of the offense:
1. First offense with BAC of at least 0.08 percent but less than 0.10 percent;
2. First offense with BAC of 0.10 percent or more, or while under the influence of drugs;
3. Second offense; and
4. Third or subsequent offense.
Penalties may include driver’s license suspension, loss of boating privileges, fines, and jail time.
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In any New Jersey courtroom proceeding, neither side can present any evidence unless the court has found that it is admissible. Municipal court judges hearing driving while intoxicated (DWI) cases often have to rule on defendants’ motions to suppress evidence that police allegedly obtained unlawfully. They must rule on objections to testimony based on rules about relevance and hearsay. Scientific evidence presents additional challenges, especially when it involves new or unfamiliar techniques or technology. With police around the state preparing to roll out a new Alcotest device in DWI cases, it is worth considering how courts decide whether to admit new scientific evidence.

Why is there a need for a separate standard for scientific evidence?

Trials and hearings may have two types of witness testimony. Fact witnesses can testify about what they saw and heard. They are not supposed to insert their own opinions. A person who witnessed a car accident, for example, can testify about what they saw, but not about why they think the accident happened.

An expert witness can testify about their opinions on certain matters. In order for the court to accept them as an expert witness, they have to testify about specialized education, training, or experience that gives them greater insight into an issue than most people. A DWI defendant who failed the field sobriety tests because of a leg injury could have their doctor testify about that injury. The doctor’s medical training allows them to offer an opinion that the leg injury could have caused the defendant to stumble.
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A case involving alleged driving while intoxicated (DWI) can have many possible outcomes, ranging from the dismissal of all charges to a conviction after a trial before a municipal court judge. Even then, a defendant might still have the right to appeal or to seek post-conviction relief. Like any kind of court proceeding, few DWI cases ever go to trial. Many DWI cases, perhaps most, result in pleas or plea agreements of some kind. New Jersey law limits the use of plea agreements in DWI cases, but a knowledgeable DWI attorney can advise their clients about whether a plea would be a good idea. One type of plea that is available in New Jersey DWI cases, the conditional guilty plea, enables a defendant to appeal certain decisions made by a municipal court before trial.

Prosecutors have the burden of proving that a defendant is guilty of each element of the offense of DWI. State law defines DWI as operating a motor vehicle either (1) while under the influence of alcohol or drugs or (2) with blood alcohol content (BAC) of at least 0.08 percent. Chemical testing of a DWI suspect’s breath, blood, or urine can determine their BAC. Even without chemical test results, a prosecutor can establish that a defendant was impaired with eyewitness testimony from police officers and expert testimony from drug recognition experts.

Defending against a DWI charge could involve challenging any part of the state’s case. A DWI lawyer might, for example, challenge the validity of the initial traffic stop. If the police officer did not have reasonable suspicion of any sort of traffic violation, then the stop violated the defendant’s Fourth Amendment rights. The court should suppress any evidence obtained as a result of the unlawful traffic stop. A successful motion to suppress based on an unlawful traffic stop often results in dismissal of the case, since it would leave the state with very little evidence. A defendant and their attorney could also move to suppress evidence based on other violations of their rights, such as breath test results from an Alcotest device that was not in compliance with state law.
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Attorneys representing people charged with driving while intoxicated (DWI) in New Jersey municipal courts can use pretrial motions to give their clients a better chance of achieving a positive outcome. A motion to suppress evidence is one of the most powerful pretrial motions a lawyer can use. It seeks to prevent the state from using evidence obtained in violation of a defendant’s constitutional rights. If successful, a motion to suppress limits the amount of evidence that prosecutors may introduce in court. It may even result in the dismissal of the DWI charge.

What Is a Motion to Suppress?

A motion to suppress is based on the “exclusionary rule.” The Fourth Amendment to the U.S. Constitution requires police to obtain a warrant before searching a person or their property, with some exceptions. If police conduct a search that violates a defendant’s Fourth Amendment rights, the exclusionary rule blocks prosecutors from using that evidence at trial.

The exclusionary rule applies to any evidence that police could only obtain through an unlawful search. This evidence is known as the “fruit of the poisonous tree.”
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In order to prove guilt in driving while intoxicated (DWI) cases in New Jersey, law enforcement must show that a defendant was under the influence of either alcohol or certain types of drugs. State law allows them to use chemical tests that allegedly show the presence of alcohol or drugs. Chemical testing for alcohol has an extensive body of law addressing how police must collect and test samples of a DWI suspect’s breath. For other drugs, they must use samples of blood or urine. This type of testing can be much less certain, both scientifically and legally. Urine testing, in particular, has significant reliability issues. If the state tries to introduce results from urine tests, DWI attorneys must carefully examine the evidence to look for errors.

New Jersey has used chemical testing in DWI and DUID cases for decades. In 1964, the New Jersey Supreme Court held that “[a]lcoholic content in the blood furnishes a scientific measure of the extent of the influence of liquor upon the person.” It went on to state that “chemical analysis of the blood itself, urine, breath and other bodily substances is a scientifically accurate method of ascertaining that content.”

State law currently defines the offense of DWI in two ways: “operat[ing] a motor vehicle” either (1) while impaired by an “intoxicating liquor, narcotic, hallucinogenic or habit-producing drug;” or (2) “with a blood alcohol concentration [BAC] of 0.08% or more by weight of alcohol in the defendant’s blood.” BAC above the “legal limit” of 0.08% creates a presumption that the defendant is legally impaired by alcohol. The state’s implied consent statute makes breath testing mandatory in DWI investigations.
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When a person is charged with driving while intoxicated (DWI) in New Jersey, they have two main options for how to respond to the state’s charges. They can enter a guilty plea, or they can fight the charges and go to trial. A defendant might plead guilty to DWI for numerous reasons. A guilty plea can be a way of avoiding worse penalties after a trial. Defense attorneys can negotiate with prosecutors in many cases in a process known as “plea bargaining.” Plea agreements often involve a defendant pleading guilty in exchange for a lighter sentence or dismissal of some charges. DWI cases, however, are different. Rules established by the New Jersey Supreme Court limit prosecutor’s ability to enter into plea agreements in cases involving DWI and refusal to submit to breath testing. Read on to learn more about what issues are subject to negotiation with prosecutors in New Jersey DWI cases.

What Is a Plea Agreement?

After a defendant first appears in court on a motor vehicle charge, some time will pass before the court will set the case for trial. Defendants and defense attorneys often use that time to negotiate with prosecutors. This process is somewhat similar to negotiations between opposing attorneys in civil lawsuits, with the goal being to resolve the dispute without going to trial.

A good plea agreement often leaves both sides feeling like they got something, but neither side feeling like they “won.” Prosecutors give up the chance of a guilty verdict, and defendants admit to some part of the state’s charges. In a case involving a reckless driving charge, for example, a defendant might agree to:
– Plead guilty to a lesser offense, like careless driving, in exchange for dismissal of the more serious charge; or
– Plead guilty to the charged offense in exchange for the prosecutor’s recommendation for a lesser sentence.
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New Jersey’s driving while intoxicated (DWI) statute is not limited to alleged driving while under the influence of alcohol. The law only provides an actual metric for how much alcohol may be present in someone’s system before they are presumed to be legally impaired. For cases involving alleged impairment by other substances, New Jersey prosecutors often rely on drug recognition experts (DREs), law enforcement officers who have received training that purports to help them identify the effects of particular drugs on individuals. After a DWI defendant challenged the admissibility of DRE evidence, the New Jersey Supreme Court appointed a special master to assess each step in the procedure used by DREs. Evan Levow is representing the DUI Defense Lawyers Association (DUIDLA) in the case. A hearing began in early October 2021, in which the special master is hearing testimony regarding the scientific reliability of DREs. With New Jersey moving towards the legalization of recreational cannabis, the outcome of this case is likely to have a far-reaching impact.

In addition to alcohol, the DWI statute includes “narcotic[s], [and] hallucinogenic or habit-producing drug[s]” as substances that can cause impairment. A driver with blood alcohol content (BAC) of 0.08 percent or more is subject to a presumption of impairment. The statute does not specify actual amounts of any other substance. Instead, prosecutors must introduce eyewitness testimony about a defendant’s behavior to prove that they were too impaired to drive. DREs arose as a way for the state to meet its burden of proving impairment.

DREs receive training and certification based on the Drug Recognition and Classification Program (DEC), which is operated by the International Association of Chiefs of Police and the National Highway Transportation Safety Administration. The DEC protocol involves a twelve-step process that DREs use to evaluate individuals suspected of driving under the influence of drugs (DUID). The process begins with BAC testing, and includes field sobriety tests and various other examinations. Toxicology testing is the last step in the process.

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A person convicted of driving while intoxicated (DWI) in New Jersey can file a petition for post-conviction relief (PCR). If successful, this will result in the court reopening the case. Since DWI is a motor vehicle offense instead of a criminal offense under New Jersey law, a petition for PCR is filed in the municipal court that originally heard the case. A PCR petition in a criminal case is filed in the Superior Court, Law Division. The New Jersey Appellate Division recently ruled on an appeal of a denial of PCR in a case involving criminal driving while license suspended (DWLS), which is a charge that can follow a DWI conviction. The court vacated the Law Division’s ruling and sent it back for an evidentiary hearing.

New Jersey DWI convictions result in license suspension, with the length of the suspension depending on several factors. A person with no prior DWI convictions in the past ten years, and whose blood alcohol content was less than 0.10 percent, will receive the shortest period of license suspension, equal to the length of time needed for the person to install an ignition interlock device in their car. The longest license suspension period, eight years, comes with a third DWI conviction within the span of a decade.

In most cases, DWLS is a motor vehicle offense. Penalties may include a fine, a brief jail sentence, revocation of one’s motor vehicle registration, and an extension of the driver’s license suspension. Criminal DWLS occurs when a person drives during a period of license suspension that is the result of:
– A first DWI conviction, and the person has a prior DWLS conviction; or
– A second or subsequent DWI conviction.
A conviction of criminal DWLS carries a mandatory jail sentence of 180 days.
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Under New Jersey law, driving while intoxicated (DWI) is a motor vehicle offense that can result in driver’s license suspension, a fine, and a jail sentence. A court may also order someone convicted of DWI to have an ignition interlock device (IID) installed in their vehicle at their own expense. In 2019, the New Jersey Legislature made several changes to the DWI statute. These include modifying the period of driver’s license suspension and making IID use mandatory. The new law took effect at the beginning of December 2019.

Prior DWI Law

Before the new law took effect, New Jersey identified four levels of DWI, based primarily on the number of prior offenses in the ten years preceding the current charge:
1. First DWI offense, with blood alcohol content (BAC) of at least 0.08 but less than 0.10 percent;
2. First DWI offense, with BAC of 0.10 percent or higher;
3. Second DWI offense, regardless of BAC; and
4. Third or subsequent DWI offense.

License suspensions ranged from ninety days for the lowest-level DWI offense, to ten years for the highest. Judges had discretion to order installation of an IID for most first offenses, but it was mandatory for subsequent convictions.

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