Articles Posted in DWI Information

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Driving while intoxicated (DWI) can involve other substances besides alcohol. New Jersey’s DWI statute makes it an offense to drive while under the influence of a “narcotic” or “habit-producing drug.” It does not specify that the narcotic or other drug must be illegal or illicit. Certain prescription medications can significantly impair a person’s ability to perform various functions, including driving. Defending against this type of DWI charge often involves challenging the police’s determination of impairment. Even if a person legally possesses a prescription medication, and uses it exactly as instructed by their doctor, the state could still charge them with DWI. Last month, for example, New Jersey prosecutors charged a school bus driver with DWI after a minor accident in a parking lot, alleging that she was under the influence of prescription medications.

New Jersey law identifies a level of blood alcohol content (BAC) at which a person is presumed to be impaired. It does not identify specific levels of other substances. In order to prove that a defendant was under the influence of something other than alcohol, the state usually relies on eyewitness testimony about a defendant’s appearance and demeanor at the time of their arrest. Prosecutors may also offer expert testimony from officers known as “drug recognition experts,” who are purportedly trained in recognizing signs of impairment by various drugs.

Reported cases involving “prescription medication DWI” in New Jersey appear to be rare. Cases often involve combinations of substances. For example, the defendant in a 2015 New Jersey Appellate Division case, State v. Pouch-Mendola, was reportedly taking two prescription medications that acted as “central nervous system depressants.” According to the court, she admitted to “consuming alcohol to ‘enhance’ [the] effect” of the medications. The court affirmed her conviction.
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The New Jersey statute defining the offense of driving while intoxicated (DWI) allows the state to prove impairment by substances other than alcohol. At the same time, it makes it generally easier for the state to prove impairment by alcohol, partially due to the wider availability of technologies for measuring alcohol in a person’s system. The New Jersey Legislature has written the law to allow a presumption of impairment based on chemical testing for alcohol, but not other substances. A report from last year by NJ.com indicates that the rate of DWI dismissals throughout the state has increased over the past decade. It suggests that an increase in prosecutions for driving under the influence of drugs, or “drugged driving,” could be a factor. It is difficult, if not impossible, to find any single cause for a statistic like this, but it is worth noting that drugged driving is potentially more difficult for prosecutors to prove.

State law defines DWI in two ways. First, a person commits an offense if they drive “while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug.” This requires the state to prove that a defendant was impaired, or “under the influence,” through a variety of means, such as eyewitness testimony and testimony from officers trained to identify the effects of various drugs. The second type of DWI is often known as DWI per se. It only requires proof that a person drove while their blood alcohol content (BAC) was at or above 0.08 percent. State law requires anyone suspected of DWI to submit breath samples for chemical testing to determine BAC. Refusal to submit a breath sample is a separate motor vehicle offense with penalties that are almost as serious as the penalties for DWI.

Prosecutors routinely call the arresting officer or officers to testify at DWI trials. Where alcohol is allegedly involved, an officer may testify about their observations of a defendant. This may involve the odor of alcohol, or physical signs of intoxication like bloodshot or glassy eyes, slurred speech, and difficulty with balance. An officer who conducted field sobriety tests (FSTs) can offer testimony about a defendant’s performance. Even in the absence of BAC evidence, the state can offer evidence in an attempt to prove intoxication.
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The legal status of cannabis, including marijuana and related products, is undergoing major changes throughout the country. More than half of all U.S. states, including New Jersey, allow the possession and use of marijuana to some extent for medical purposes under a doctor’s supervision. A handful of states have enacted laws decriminalizing the possession of small amounts for recreational use. This may involve the substitution of civil penalties for criminal ones, or the removal of all legal penalties. A bill pending in the New Jersey Legislature, the New Jersey Cannabis Regulatory and Expungement Aid Modernization Act (NJCREAMA) would remove all criminal penalties for the purchase and possession of up to one ounce of cannabis. Several provisions of the bill directly address investigations and prosecutions under New Jersey’s driving while intoxicated (DWI) law.

The New Jersey DWI statute defines the offense, in part, as driving “while under the influence of intoxicating liquor, narcotic,…or habit-producing drug.” For alcohol, the statute establishes a blood alcohol concentration (BAC) of 0.08 percent as the per se standard of impairment. State law also requires DWI suspects to submit a breath sample for BAC testing. New Jersey has no per se standard for marijuana impairment in DWI cases. Prosecutors must instead rely on circumstantial evidence and testimony from police officers trained as “drug recognition experts.” A bill introduced in February 2018, A2776, would establish a per se standard of two nanograms per milliliter, based on blood tests, but it is still awaiting a committee assignment.

Legislators first introduced NJCREAMA in the Senate in June 2018 as S2703. The Senate Budget and Appropriations Committee reported favorably on an amended version of the bill on November 26, 2018. A companion bill, A4497, was introduced in the Assembly and received a favorable report from the Assembly Appropriations Committee on the same day. This means that both committees recommend passage of the bill. In addition to legalizing small amounts of marijuana for medical use, the bill would create a new Cannabis Regulatory Commission (CRC) “to regulate personal use and medical cannabis.” It also provides for the expungement of records in certain prior marijuana cases.
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The holiday season means many great things for people in New Jersey, such as family, friends, and celebration. Since the “celebration” part of the holidays can sometimes lead to excess, police tend to step up efforts to enforce New Jersey driving while intoxicated (DWI) laws on roads during the holidays. This may include the use of roadside sobriety checkpoints. New Jersey police are allowed to stop drivers at temporary checkpoint locations to inquire about alcohol consumption and look for signs of intoxication. The ability of police to do this is strictly limited, however, by the Fourth Amendment’s prohibition on unreasonable searches and seizures. New Jersey drivers should know their rights during sobriety checkpoint stops.

The New Jersey DWI statute defines the offense primarily as operating a motor vehicle “while under the influence” of alcohol or drugs, or with blood alcohol concentration (BAC) of 0.08 percent or more. The state may prove this by offering evidence of a defendant’s BAC obtained from a breath sample, which all drivers in New Jersey are required to provide under law, or through other evidence indicating that a defendant was impaired at the time they were operating a vehicle. Many DWI cases begin with a traffic stop based on a police officer’s suspicion that the driver is intoxicated. The Fourth Amendment requires that this be a “reasonable suspicion,” meaning that police officers cannot pull a driver over without some clear basis for suspecting DWI. To make an arrest, police must have “probable cause” to believe an offense has occurred.

Sobriety checkpoints, which allow police to stop some or all vehicles on a particular stretch of road, clearly do not involve “reasonable suspicion,” but the U.S. Supreme Court has affirmed their constitutionality. In 1990, the court held in Michigan Department of State Police v. Sitz that preventing DWI was a “substantial government interest,” that sobriety checkpoints “reasonably…advance that interest,” and that “the degree of intrusion upon individual motorists” is minimal. The New Jersey Appellate Division held that a sobriety checkpoint was constitutional in 1985 in State v. Kirk, and in 1989 in State v. Mazurek. The New Jersey Supreme Court reached a similar ruling in 2002’s State v. Carty.
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Prosecutions for driving while intoxicated (DWI) in New Jersey often begin with a traffic stop. A police officer might pull a driver over based on a specific suspicion of DWI, or they might pull them over for another reason and then notice signs of possible impairment by drugs or alcohol. In either case, police must have “reasonable suspicion” of unlawful activity before initiating a traffic stop. The “reasonable suspicion” requirement is an exception to the Fourth Amendment’s warrant requirement. New Jersey prosecutors recently tried to justify a traffic stop that led to a DWI case under the “community caretaker” doctrine, another exception to the warrant requirement, in State v. Sutherland. The New Jersey Supreme Court had previously rejected prosecutors’ reasonable suspicion argument. On remand, the Appellate Division rejected the community caretaker argument as well. This can be a complex area of law, so it may be worthwhile to reach out to a New Jersey DWI lawyer if you have questions.

Under New Jersey law, it is a traffic offense to drive “while under the influence” of drugs or alcohol. The state can prove that a defendant was legally impaired through various means, including eyewitness testimony by the arresting officers, other officers, and “drug recognition experts.” Prosecutors can also introduce evidence of blood alcohol content (BAC) at or above the “legal limit” of 0.08 percent. Defending against a DWI charge often involves challenging the state’s evidence of impairment, but it may also be possible to challenge the justification for the traffic stop itself.

Brief detentions of individuals by police, based on reasonable suspicion of unlawful activity, are often known as “Terry stops,” after the 1968 U.S. Supreme Court decision Terry v. Ohio. Five years later, the court decided Cady v. Dombrowski, which held that police do not violate the Fourth Amendment when they find evidence of criminal activity while engaging in certain “community caretaking functions.” This refers to police activities that have no relation to “the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”
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Defending against a charge of alleged driving while intoxicated (DWI) in New Jersey requires careful evaluation of every part of the state’s case, which is why it is often wise to retain a dedicated New Jersey DWI lawyer if you are in such a situation. The state has the burden of proving guilt beyond a reasonable doubt on every element of the offense of DWI. The job of a defendant and their counsel is to challenge the state’s evidence and legal arguments. The Fourth Amendment to the U.S. Constitution prohibits police from conducting searches and seizures without a warrant, but the courts have identified numerous exceptions. A police officer may be able to justify a traffic stop if they can demonstrate “reasonable suspicion” of unlawful activity by the driver. In early 2018, the New Jersey Supreme Court rejected the state’s reasonable suspicion argument in State v. Sutherland. The court held that the officer’s suspicion was not “objectively reasonable.” It remanded the case to the Appellate Division to resolve the state’s alternative argument that the stop was justified by the “community caretaking” doctrine.

New Jersey’s DWI statute broadly prohibits the operation of a motor vehicle “while under the influence” of alcohol or drugs. It allows the state to prove impairment by alcohol in two ways: with evidence that a defendant’s blood alcohol concentration (BAC) was 0.08 percent or higher, or with other evidence indicating impairment. The statute identifies various penalties based on factors like a defendant’s BAC and their number of prior convictions. It does not make any mention of the manner in which police come to suspect that a driver is impaired.

A police officer may briefly detain a person, such as in a traffic stop, without a warrant if they have reasonable suspicion of criminal or other unlawful activity. The U.S. Supreme Court affirmed this in Terry v. Ohio in 1968. The court held that an officer’s suspicion must be based on “specific reasonable inferences…in light of his experience,” and not on an “inchoate and unparticularized suspicion or ‘hunch.’” In the context of a DWI case, an officer might testify that they witnessed a defendant driving erratically. A traffic stop that leads to a DWI charge does not have to begin with an officer’s suspicion of DWI. A police officer could stop a driver for another suspected traffic violation, such as running a red light, and then discover evidence of DWI. This becomes complicated when an officer is mistaken about traffic law.
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New Jersey DWI (driving while intoxicated) and related offenses are not considered criminal offenses. Instead, they are classified as traffic offenses, meaning that the maximum penalties, while still potentially quite onerous, are generally not as severe as in many criminal cases. A case involving alleged DWI can include criminal charges when injury or death occurs, but a defendant may also be subject to criminal prosecution merely for driving while their license is suspended (DWLS) when they have prior DWI-related convictions. The New Jersey Superior Court, Appellate Division recently considered what prior convictions are necessary for the criminal DWLS statute to apply in State v. Dougherty.

New Jersey’s criminal DWLS statute imposes a mandatory minimum sentence of 180 days in jail. The statute identifies two scenarios based on the reason for the license suspension and the defendant’s prior record.
1. An ordinary DWLS charge can become a criminal charge if the license suspension is because of a conviction for first-time DWI or refusal to submit to breath testing, and the defendant has a prior conviction for DWLS during the same period of license suspension. This provision appears to require two prior convictions: one for DWI or refusal, and one for DWLS.
2. The criminal statute may also be invoked if the reason for the license suspension is a second or subsequent DWI or refusal conviction. This provision does not require a prior conviction for DWLS, but does require multiple prior DWI or refusal convictions.

The defendant in Dougherty was charged with criminal DWLS under the second scenario identified by the statute. He was convicted of DWI in August 2015, resulting in a three-month license suspension. In November 2015, he was convicted of refusal and sentenced to a seven-month license suspension. A police officer pulled him over while driving in December 2015, during the suspension period resulting from the refusal conviction. A grand jury indicted him for criminal DWLS.
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In New Jersey, driving while intoxicated (DWI) and most related offenses are not considered criminal in nature. They are instead classified as traffic or motor vehicle offenses. Driving while license suspended (DWLS) is usually a motor vehicle offense, punishable by a fine, driver’s license suspension, and potential revocation of vehicle registration. In certain circumstances, however, DWLS is a criminal offense. Prosecutors may charge a defendant with both forms of DWLS for a single alleged incident. A defendant convicted of both offenses recently argued on appeal that the trial court should have merged the penalties. The New Jersey Appellate Division agreed earlier this year in State v. Koerner. While it affirmed the conviction, it remanded the case to the lower court for resentencing.

Under New Jersey’s motor vehicle laws, a first DWLS offense carries a fine of $500. If the offense occurs during a period of license suspension for a DWI or refusal conviction, the penalty also includes vehicle registration revocation. For a second offense, the penalty includes a $750 fine and up to five days in jail. The penalty for a third or subsequent offense is a $1,000 fine and up to ten days in jail. If a second, third, or subsequent offense occurs within five years of a prior DWLS conviction, the defendant is also subject to registration revocation. Municipal courts typically hear motor vehicle cases.

The state can charge a person with criminal DWLS in two situations: (1) when the individual has a prior traffic conviction for DWLS during a period of license suspension resulting from a DWI or refusal conviction; or (2) when the alleged offense occurs while the individual’s license is under suspension for a second of subsequent DWI or refusal conviction. In both cases, it is a crime of the fourth degree, with a mandatory minimum sentence of 180 days in county jail. New Jersey’s sentencing statute allows sentences of up to eighteen months for crimes in the fourth degree. The New Jersey Superior Court, Law Division is the venue for most criminal cases.
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According to recent media reports, the number of convictions for driving while intoxicated (DWI) in New Jersey is decreasing, at least with regard to cases involving alcohol. The decline reportedly might be due to an increase in DWI cases involving marijuana and other controlled substances. New Jersey law provides no per se standard for impairment by marijuana or other drugs that is comparable to the standard for alcohol. A bill currently pending in the New Jersey Assembly, A2776, would establish a per se standard for marijuana in DWI cases. This bill, if enacted, would probably present both benefits and drawbacks for New Jersey DWI defendants.

New Jersey law creates a presumption of impairment if a defendant’s blood alcohol content (BAC) is at least 0.08 percent. This is often known as DWI per se. Since no similar standard exists for marijuana and other drugs, prosecutors must rely on testimony from police officers who have received training as “drug recognition experts” (DREs). Typically, a DRE-certified officer observes a defendant during or shortly after their arrest, and then forms an opinion of which substance(s) they took. The use of DRE testimony in court presents problems for defendants, given the wide gulf that often exists between the questionable scientific basis of their training and the weight that courts often give to police officers’ testimony.

Tests for marijuana look for specific compounds in the blood. Delta 9-tetrahydrocannabinol (THC) is the active component of marijuana, but it can dissipate in the bloodstream within a few hours. As the body metabolizes THC, it produces a form of carboxylic acid known as delta 9-carboxy-THC (THC-COOH) as a metabolite. The presence of THC-COOH can determine if someone has recently used marijuana, but it is a less accurate method of establishing actual impairment.

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New Jersey law imposes a range of penalties for driving while intoxicated (DWI) and related offenses, including license suspensions, fines, and the possibility of jail time. On top of that, the state Motor Vehicle Commission (MVC) assesses surcharges in New Jersey DWI cases. These are monetary penalties that must be paid separately from any fines imposed by a municipal court. The amount of the surcharge can be substantial, particularly for someone with multiple convictions, so understanding and preparing for a surcharge obligation is an essential part of defending against DWI charges. New Jersey considers DWI to be a “petty” offense, contained in the state’s motor vehicle laws rather than its criminal statutes. Courts have held that surcharges do not enhance the penalties for DWI to the point that it should be considered a criminal offense.

The New Jersey DWI statute identifies an increasing range of penalties. A first offense involving a blood alcohol content (BAC) of at least 0.08 percent, but less than 0.10 percent, carries the lowest maximum penalty. A third or subsequent offense carries the greatest potential penalty, including up to six months in jail, a fine of up to $1,000, and a license suspension of 10 years. The possible penalties for refusal to submit to breath testing also increase based on prior convictions, and they include both fines and a license suspension. A conviction for either offense includes a $100 surcharge payable to a Drunk Driving Enforcement Fund managed by the state, but this is not the only surcharge payable in DWI and refusal cases.

The New Jersey Automobile Insurance Reform Act of 1982 created a surcharge system under the MVC. It applies to DWI and refusal offenses occurring in New Jersey on or after February 10, 1983, and to comparable out-of-state offenses occurring on or after January 26, 1984. The amount of the surcharge has not changed since that time. The surcharge for a first or second DWI or refusal conviction is $3,000, payable in three annual installments of $1,000. For a third or subsequent conviction, the surcharge is $4,500, payable in three annual $1,500 payments. If a driver is convicted of both DWI and refusal based on a single arrest, they must only pay one surcharge. Private insurance companies may also assess their own surcharges after DWI or refusal convictions.

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