Articles Posted in DWI Information

New Jersey’s court system slowed to a near-halt in March 2020, along with much of New Jersey’s economy, in an effort to fight the spread of the novel coronavirus and the illness it causes, COVID-19. Municipal courts, which hear New Jersey DWI cases, began to resume certain proceedings in April. They have been conducting most matters remotely via telephone or videoconferencing technology since May. Under a plan issued by the New Jersey Supreme Court, this has been known as “Phase 1.” The court has announced that Phase 2 will begin on Monday, June 22. While municipal courts will continue to handle most matters remotely, they will be able to hold DWI trials and other matters in person, subject to social distancing and other public health guidelines.

DWI Trials in Municipal Court

DWI is not a criminal offense under New Jersey law. It is considered a motor vehicle offense. The penalties for a DWI are relatively minor when compared to various criminal offenses, with a maximum jail sentence of 180 days and a maximum fine of $1,000 for a third or subsequent offense. At the same time, the full range of procedures and constitutional protections available in criminal prosecutions do not apply to DWI cases.

The main difference is the nature of trials in DWI cases. Municipal courts have original jurisdiction over all DWI prosecutions, and defendants are not entitled to a trial by jury. A municipal judge will hear the case, render a verdict, and decide on a sentence.

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New Jersey prosecutors can use evidence of blood alcohol content (BAC) to prove that a person committed the offense of driving while intoxicated (DWI). Under state law, driving a vehicle on a public road implies consent to breath testing to determine BAC. Refusal to submit to breath testing is a separate motor vehicle offense. Law enforcement began using a device known as the Alcotest in 2005, and it is now the standard device throughout the state for BAC testing. Police must follow specific procedures regarding maintenance and calibration of these devices, as set forth in a 2008 ruling by the New Jersey Supreme Court. A decision by the court in late 2018 called over 20,000 New Jersey DWI cases into question based on falsified maintenance records. In June 2019, the Appellate Division cited that decision when it voided the conviction in one of the affected cases. If you have been stopped in New Jersey and asked to submit to breath testing, it is important that you contact a New Jersey DWI attorney as soon as possible to protect your rights under the law.

Under New Jersey law, BAC of 0.08 percent or higher creates a presumption that a person was under the influence of alcohol. This is known as per se DWI. Prosecutors can also establish that a person was impaired by alcohol through the “observational method.” This typically involves police officers’ testimony about their observations of a defendant’s appearance, behavior, and performance on field sobriety tests.

The New Jersey Supreme Court’s 2008 ruling established procedures for calibrating the Alcotest device, which requires careful maintenance to ensure accurate results. Police must calibrate the devices on a regular basis, and must follow standards set by the National Institute of Standards and Technology (NIST) when doing so. They must keep records of these calibrations, and must introduce those records as evidence along with BAC test results in DWI cases.

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Much of New Jersey is currently shut down because of the global COVID-19 pandemic, which has hit this state particularly hard. In some ways, this has slowed enforcement of driving while intoxicated (DWI) laws, but in other ways, New Jersey police are even more on alert. Municipal courts across the state remain closed under an order from the New Jersey Supreme Court, so any pending or new cases must wait for court dates. The governor’s emergency orders, on the other hand, require people to limit their movement and interactions with others, in the hopes of slowing the spread of the virus. Police are on the lookout for violators. Recent news coverage of arrests during the coronavirus lockdown has also shown how DWI enforcement can involve both criminal and motor vehicle laws.

DWI During a Lockdown

The New Jersey DWI statute defines the offense as operating a motor vehicle while under the influence of alcohol or drugs, or while one has blood alcohol content (BAC) of 0.08 percent or higher. Police can pull drivers over if they have reasonable suspicion that they have committed a traffic offense, such as running a stop sign, failing to use a turn signal, or driving erratically. If additional evidence leads them to suspect DWI, such as the odor of alcohol or the driver’s appearance or behavior, they may conduct a further investigation. This could include field sobriety tests or breath testing to determine BAC.

The executive orders issued by the governor in response to the coronavirus pandemic have given police in New Jersey additional justifications for pulling over drivers. It is too early to know if this will lead to more DWI arrests, but it is a possibility. On March 21, 2020, the governor issued Executive Order 107, which instructs “all New Jersey residents [to] remain home or at their place of residence” unless they are performing essential tasks like going to work, seeking medical attention, or going to the grocery store. State law allows law enforcement to penalize violations of this order as a disorderly persons offense.

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New Jersey has developed an extensive body of law addressing the investigation and prosecution of suspected driving while intoxicated (DWI), at least when the substance in question is alcohol. Testing the amount of alcohol present in a person’s system, known as blood alcohol concentration (BAC), is a highly imperfect process, which is prone to constant errors. Despite its many flaws, it is still a better system than anything available for determining whether a driver was impaired by other drugs. Currently, New Jersey prosecutors pursuing alleged driving under the influence of drugs (DUID) must rely on (1) chemical tests with no specific threshold amount to determine impairment, and (2) the testimony of police officers purportedly trained to identify outward signs of intoxication by various drugs. As legislators continue to consider the New Jersey Cannabis Regulatory and Expungement Aid Modernization Act (NJCREAMA), questions will continue to abound about how to enforce DUID laws involving marijuana, and how to defend people charged with that alleged offense. If you have been charged with a DWI, it is important that you speak with a New Jersey DWI attorney as soon as possible.

In cases involving alcohol, New Jersey’s “legal limit” of 0.08 percent BAC creates a presumption of impairment. This is often known as per se DWI. New Jersey law has no specific threshold amount for marijuana or any other drug in DUID cases. Police can seek a warrant to test samples of blood or urine, but that only indicates whether or not a suspect had a particular drug in their system at the time the sample was taken. Prosecutors usually must produce other evidence to establish impairment. This often involves testimony by police officers who receive specialized training as “drug recognition experts” (DREs).

In cases involving alleged marijuana impairment, chemical testing evidence and DRE testimony may conflict with one another. Marijuana can show up in blood or urine tests long after its effects have worn off. Several recent New Jersey cases have relied on chemical tests allegedly showing the presence of marijuana in a driver’s system, despite testimony from eyewitnesses, including police officers, who did not notice any signs of impairment.

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In New Jersey, driving while intoxicated (DWI) is not a criminal offense in most situations. Instead, it is a motor vehicle offense, defined in the same chapter of New Jersey law as offenses like reckless driving and driving with a suspended license. A conviction for DWI can still lead to significant penalties, including up to 180 days in jail, fines, and lengthy periods of driver’s license suspension. New Jersey law allows prosecutors to charge a person with one or more criminal offenses in connection with a DWI in certain circumstances. When a person allegedly commits DWI while a minor is a passenger in their vehicle, prosecutors can charge them with a misdemeanor-level offense. If the alleged offense involves a significant amount of risk to the child’s safety, the state can charge a person with the more serious offense of endangering the welfare of a child (EWC).

The EWC statute does not specifically mention DWI, but prosecutors have applied it to such situations on many occasions. It makes reference to several provisions in Title 9 of the New Jersey Revised Statutes, which address the abuse, abandonment, and neglect of children. Section 9:6-8.21(1)(c), for example, defines an “abused or neglected child” in part as one whose “parent or guardian” has “create[d] or allow[ed] to be created a substantial or ongoing risk of physical injury” that is likely to lead to the child’s death, disfigurement, or debilitating injury. Section 9:6-3 makes such acts or omissions by a responsible adult a criminal offense.

Abuse or neglect of a child is a “crime of the fourth degree” according to § 9:6-3. This is the equivalent of a felony offense in other state’s criminal codes. New Jersey uses the term “indictable crime” or “crime of the [X] degree” to refer to these levels of offense. The New Jersey Code of Criminal Justice, located in Title 2C, defines EWC as a crime of the second degree when it involves acts identified in provisions like § 9:6-8.21(1). These offenses are punishable by much longer terms of incarceration than motor vehicle offenses or misdemeanors, identified in New Jersey as “disorderly persons offenses.”
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New Jersey law defines driving while intoxicated (DWI) as a motor vehicle offense, instead of a criminal offense. In certain situations, however, a DWI case can lead to criminal charges. One way is when a person allegedly commits DWI while a minor is a passenger in the vehicle. In many cases, this is a separate offense classified as a “disorderly persons offense,” the equivalent of a misdemeanor under New Jersey law. If the circumstances of a particular case allegedly placed a child at particular risk, however, prosecutors could charge a defendant with a felony-level offense. While DWI with a minor is a more serious offense than DWI in most ways, it also differs from DWI in some unusual ways. A DWI with a minor conviction, for example, might be eligible for expungement, while a DWI conviction is not.

The main DWI statute, found in § 39:4-50 of the New Jersey Revised Statutes, actually defines at least four distinct offenses: first-time DWI, second DWI, third or subsequent DWI, and DWI in a school zone. DWI with a minor is found in § 39:4-50.15. It defines a “minor” as a person who is no more than seventeen years old. A “parent or guardian” is anyone with “a legal duty for…care, custody or control” of a minor, even on a temporary basis. This includes a driver with a minor as their passenger.

DWI with a minor is a disorderly persons offense. A person must be convicted of DWI in order to be found guilty of DWI with a minor, but the statute defines them as two separate offenses. The New Jersey Code of Criminal Justice, found in Title 2C of the New Jersey Revised Statutes, does not define criminal offenses with the familiar terms “felony” or “misdemeanor.” Instead, it uses the terms “crime” and “disorderly persons offense,” respectively, to refer to each. While New Jersey law states that a disorderly persons offense is not a “crime,” this only means that it is not a “felony.”
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A person commits the offense of driving while intoxicated (DWI) in New Jersey when they operate a motor vehicle while impaired by alcohol or a drug. The DWI statute establishes four levels of penalties. The first two levels apply to first offenses. The remaining levels apply to second offenses and third or subsequent offenses. The New Jersey Legislature amended the statute in 1999 to add enhanced penalties for DWI offenses that occur on or near school property, or in designated crosswalks. The general offense of DWI is codified in § 39:4-50(a) of the Revised Statutes, and the school-related provisions are in subsection (g). In 2004, the New Jersey Supreme Court ruled that subsection (g) is a separate offense from subsection (a). This has created some confusion about how to determine when a prior New Jersey DWI conviction should count toward a sentencing enhancement.

Subsection (a) sets two levels of penalties for a first DWI offense. If the defendant had a BAC of more than 0.08 percent, but less than 0.10 percent, the penalties include a fine of $250 to $400, jail time of 12 to 48 hours, and a three-month driver’s license suspension. Some penalties increase if the defendant’s BAC was 0.10 percent or higher, such as a fine of $300 to $500 and a license suspension of seven months to one year. The penalties increase for a second offense, and again for a third or subsequent offense, provided that the most recent previous offense occurred no more than 10 years earlier.

The New Jersey Legislature passed Senate Bill 854 in June 1999, and it was signed into law in August of that year. Legislators named the bill “Filomena’s Law,” after a school crossing guard who was killed by a drunk driver in 1997. The bill amended numerous provisions of New Jersey law, including sections of the Code of Criminal Justice addressing vehicular homicide and other offenses. It added subsection (g) to the DWI statute, which applies when a person commits DWI on school property, within 1,000 feet of school property, in a designated school crossing, or in an area the driver knows is being used as a school crossing.

New Jersey’s driving while intoxicated (DWI) statute sets multiple levels of penalties, primarily based on a defendant’s number of convictions within the prior decade. Enhanced penalties apply for a second offense within a ten-year period, and again for a third or subsequent offense. A 1999 amendment to the DWI statute created a separate set of penalties, found in subsection (g) of the statute, for DWI on or near school property. Uncertainty has arisen with regard to whether a conviction under one subsection should count as a prior offense in a new case under the other subsection, and how to apply the sentencing enhancements found in each subsection. Decisions from the New Jersey Supreme Court and the Appellate Division have held that the order in which the two offenses occur—(g) followed by (a), or (a) followed by (g)—is important.

The penalties for a second DWI conviction under subsection (a) include a fine of $500 to $1,000, imprisonment of forty-eight hours to ninety days, and driver’s license suspension for two years. A second offense under subsection (g) has harsher penalties: a fine of $1,000 to $2,000, imprisonment of ninety-six hours to 180 days, and a four-year license suspension. The penalties for a third or subsequent offense within ten years are also greater under subsection (g) than subsection (a).

A 2004 New Jersey Supreme Court ruling involved a defendant convicted of DWI under subsection (g), with a prior conviction under subsection (a). The municipal court applied subsection (g)’s enhanced penalties for a second offense. The Appellate Division affirmed this sentence, finding that a second DWI offense in a school zone “can be viewed as an escalating violation.”
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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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