Articles Posted in DWI Information

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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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Many cases involving alleged driving while intoxicated (DWI) in New Jersey begin with the stop of a vehicle by police. The Fourth Amendment to the U.S. Constitution prohibits “unreasonable searches and seizures,” and requires police to obtain a warrant before detaining a person or conducting a search. Courts have identified exceptions, which often apply in urgent situations where police cannot take time to go to a judge for a warrant. Other exceptions apply to routine functions that police are supposed to serve. The “community caretaker” exception, for example, allows police to detain someone briefly, without suspicion of criminal activity, if they believe the person needs assistance. Earlier this year, we were involved in a case before the New Jersey Appellate Division that addressed the community caretaker exception in a DWI case.

New Jersey’s DWI law allows the state to prove that a defendant was intoxicated by presenting evidence of blood alcohol content (BAC) of at least 0.08 percent, or with witness testimony, usually from police, about the defendant’s behavior and appearance. Before the state can introduce any of this evidence, they must demonstrate that the police had a legal justification for stopping the defendant in the first place.

Most traffic stops fall under an exception to the Fourth Amendment’s warrant requirement established by the U.S. Supreme Court in Terry v. Ohio in 1968. Police can briefly detain a person if they have a reasonable belief that the person has committed or is committing an offense. A police officer can stop a vehicle based on suspicion of DWI if, for example, they observe a person driving erratically. The community caretaker exception, however, might allow police to stop a vehicle without such suspicion.
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New Jersey’s driving while intoxicated (DWI) statute gives prosecutors two methods of establishing that a defendant was too impaired to operate a vehicle legally. They can introduce evidence indicating that the defendant’s behavior and appearance at or near the time they were driving were consistent with intoxication due to alcohol or drugs. Prosecutors may also prove intoxication by showing that a defendant’s blood alcohol content (BAC) was above a certain level. What is BAC, though? Simply put, it is a measurement of how much alcohol is present in a person’s body. How police measure BAC is often a matter of controversy, so a New Jersey DWI attorney’s knowledge of how state law uses BAC is important to understanding how to defend against DWI charges.

BAC in New Jersey DWI Law

The DWI statute defines the offense as either:
1. Driving “while under the influence of” drugs or alcohol; or
2. Driving with BAC of at least 0.08 percent.
With evidence that a defendant had BAC of 0.08 percent or more, the state does not necessarily have to provide evidence of extrinsic details like bloodshot eyes or the odor of alcohol. New Jersey law presumes that a person was intoxicated, and therefore unable to drive, when their BAC was above the “legal limit.” This is often known as per se DWI.

State law requires every driver to submit to breath testing to determine BAC, and makes refusal a separate motor vehicle offense. A defendant can challenge the admissibility of the state’s BAC evidence based on a 2008 decision by the New Jersey Supreme Court, which established procedures that police must follow to calibrate and maintain the Alcotest devices used to perform breath tests.

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The law behind driving while intoxicated (DWI) in New Jersey is more complicated than it might appear at first glance. Multiple court decisions interpreting the DWI statute have held that prosecutors do not have to provide direct evidence that a person was driving. They only need to prove that a person had both the intent and the opportunity to drive while impaired by alcohol. The New Jersey Superior Court, Appellate Division affirmed this view of the DWI statute in a February ruling. It denied the appeal of a defendant who was convicted after police found him sleeping in his car with the engine running. This is an important decision for both DWI lawyers and the general public.

New Jersey’s DWI statute establishes a two-part definition of the offense. The state must prove that a defendant (1) operated a vehicle (2) while impaired by drugs or alcohol. Prosecutors can prove the second point in several ways, including evidence of blood alcohol content (BAC) and eyewitness testimony from police about the defendant’s appearance and behavior. Much discussion of DWI defenses focuses on how the state proves impairment. Maybe the police failed to maintain the Alcotest device adequately, and the BAC evidence should be thrown out. Perhaps the officer who pulled a defendant over lacked a legal justification for the stop. Sometimes, however, defendants dispute the first element of the offense.

As the Appellate Division notes in its February decision, New Jersey courts have taken a broad view of what it means to “operate” a vehicle. In a 1987 decision, the New Jersey Supreme Court stated that “a pragmatic definition of this term is necessary” in order to fulfill the purpose of the DWI statute, which is “to deal with the risk that intoxicated drivers will cause harm to themselves and to others.” The court found that intoxicated drivers can pose this sort of risk “even before [they] may have put [their] car in motion.” It cited a 1963 decision, in which it held that “a person may be “operating” a motor vehicle…even when the vehicle has not been moved.”

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