Articles Posted in DWI Information

The Fourth Amendment’s prohibition on unreasonable searches and seizures applies in all New Jersey driving while intoxicated (DWI) investigations and prosecutions. Defendants can raise Fourth Amendment challenges to numerous aspects of a DWI prosecution, such as a lack of reasonable suspicion before stopping their vehicle, or a lack of probable cause to initiate a DWI investigation. In cases in which police suspect an intoxicating substance other than alcohol, they may make use of a Drug Recognition Evaluator (DRE), who has received training in identifying signs of impairment by various drugs. A lawsuit filed last year challenges the use of DREs on Fourth Amendment grounds. While the case is pending in another state, it could affect future New Jersey DWI cases.

A private organization, the International Association of Chiefs of Police (IACP), operates the system for training and certifying DREs in cooperation with the National Highway Traffic Safety Administration (NHTSA). New Jersey has more than 400 police officers participating in the program. DREs use a 12-step process to assess whether a DWI suspect is under the influence of drugs. The IACP claims that this process is supported by scientific research, although this is subject to dispute. Part of the process, for example, involves field sobriety tests that are not part of the standard battery of tests approved by the NHTSA. A variety of medical conditions, physical impairments, and other factors could influence an individual’s performance on the various tests administered by a DRE as part of the 12-step process. A DRE’s expertise, for evidentiary purposes in court, usually does not extend beyond their specific training as a DRE.

The lawsuit mentioned above, Ebner v. Cobb County, involves three plaintiffs who, according to their complaint, were arrested, subjected to forced blood draws, and held for several hours “simply because a police officer had a hunch, based on deeply flawed drug-recognition training, that they might have been smoking marijuana.” None of them were under the influence of marijuana at the time of their arrests, they claim, and toxicology tests reportedly showed no traces of marijuana or its metabolites. They were all charged with DWI, but all charges were eventually dropped.

Under the laws of the state of New Jersey, driving while intoxicated (DWI) is a motor vehicle offense rather than a criminal offense. While a DWI conviction can result in serious penalties, including the possibility of jail time, the New Jersey court system does not deal with DWI cases in the same way it handles most criminal cases. A defendant in a New Jersey DWI case, for example, does not have the right to a trial by jury as described in the Sixth Amendment to the U.S. Constitution. DWI is considered a “petty” offense, and therefore it is not covered by all of the provisions of the Bill of Rights that apply in criminal cases. Most other rights, like the Fourth Amendment’s protection against unreasonable searches and seizures and the Sixth Amendment’s right to confront one’s accuser, still apply in DWI cases. Understanding which courts may consider DWI prosecutions and appeals, and how they are allowed to consider them, is important when planning a defense against DWI charges.

Municipal courts have original jurisdiction over DWI cases under Rule 7:1 of the New Jersey Rules of Court (NJROC). The municipal court judge handles all pretrial motions and other matters, and presides over the trial if one occurs. The judge will render a verdict and decide on a sentence. Several levels of appeal are available after a conviction in municipal court. If a person seeks post-conviction relief, however, NJROC 7:10-2 requires them to file a petition in the municipal court where the conviction took place.

Appeals from a municipal court conviction go to the Superior Court, Law Division. NJROC 3:23 requires a defendant to file a notice of appeal within 20 days of their conviction. The Law Division, upon receiving a transcript from the municipal court, may reverse the conviction and remand the case to the lower court, or it may conduct a trial de novo. While the Law Division is not bound by the municipal court’s findings of law or fact, it must “give due…regard to the opportunity of the [municipal court] to judge the credibility of the witnesses,” according to the New Jersey Supreme Court 1964 ruling in State v. Johnson.

New Jersey laws dealing with driving while intoxicated (DWI) are consistent throughout the state, meaning that prosecutors in each county in New Jersey must meet the same burden of proof to obtain a conviction. A review of municipalities around the state by NJ.com, however, has found that some local police departments are much more assertive in enforcing these laws. New Jersey law allows municipalities to regulate the sale of alcoholic beverages, including by prohibiting their sale within city limits. These “dry towns,” according to the NJ.com report, have some of the highest DWI arrest rates in the state. Differences in arrest rates can have many possible causes, including prioritization by local law enforcement.

A person commits the offense of DWI if they operate a motor vehicle while impaired by alcohol or drugs, or while they have a blood alcohol concentration (BAC) of 0.08 percent or higher. Police and prosecutors often prefer to prove impairment with BAC evidence, since a BAC above the “legal limit” of 0.08 percent creates a presumption of intoxication. They can also meet their burden of proof with evidence of how a driver behaved, appeared, or smelled at the time police pulled them over. During patrols, police may look for vehicles that are moving erratically, which could indicate impairment by a driver. Police are also allowed to operate roadside checkpoints for the purpose of checking motorists for common signs of intoxication. Each police department has wide leeway in setting enforcement priorities.

Businesses that serve or sell alcohol must have a license to do so. New Jersey law gives municipalities the authority to determine how many licenses, if any, to issue. A municipality might ban the sale of alcohol altogether, or it might prohibit retail sales while allowing restaurants to serve alcohol. New Jersey has 32 dry towns that prohibit alcohol sales to some extent. Most of these are located in the southern part of the state. Camden County is home to four dry towns:  Audubon Park, Collingswood, Haddon Heights, and Haddonfield.

On multiple occasions, prosecutors in this state have charged people with driving while intoxicated (DWI) for operating a bicycle while allegedly under the influence. This raises an interesting question about the scope of DWI law. Courts have reached different conclusions about whether operating a non-motorized bicycle—meaning one that is solely powered by a person’s own effort—constitutes DWI under New Jersey law. The Appellate Division does not appear to have ruled on the question directly, but trial court decisions point to the conclusion that the DWI statute only applies to motorized vehicles.

The New Jersey statute defining DWI specifically states that an offense occurs when a person is operating a “motor vehicle.” State law defines a “motor vehicle” to include most vehicles “propelled otherwise than by muscular power.” This definition excludes trains and other rail-based vehicles, as well as “motorized bicycles.” The law defines a “motorized bicycle” as a pedal bicycle that can be assisted by a motor that allows it to travel at a maximum of 25 miles per hour—commonly known as a moped. A separate statute addresses operating a motorized bicycle while under the influence of alcohol or drugs, and it imposes the same penalties as in a DWI case involving a motor vehicle.

Several New Jersey trial courts have addressed the question of whether the DWI statute applies to bicycles. Since none of these cases resulted in an Appellate Division ruling, they are not binding on other courts. They may still be persuasive, though. In 1982, the Superior Court in Somerset County held in State v. Tehan that the DWI statute applies to bicycles, but only to a partial extent. Bicycle riders are “subject to all of the duties applicable to the driver of a vehicle,” the court noted. It also found that, since riding a bicycle does not require a license, the driver’s license suspension provisions of the DWI statute do not apply to bicycles. It affirmed the municipal court’s guilty verdict and the fine, but it reversed the license suspension.

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Every defendant charged with driving while intoxicated (DWI) in New Jersey is entitled to a trial by a municipal court judge. If a defendant believes that the municipal court has made an error in its verdict, they can appeal to the New Jersey Superior Court, Law Division. This court has the authority to conduct a new trial. From there, a defendant can appeal to the Appellate Division, and then to the New Jersey Supreme Court. These higher courts, however, are limited in their ability to review or reverse the factual findings of the lower courts, and they are often hesitant to second-guess a trial court’s conclusions. The Appellate Division reviewed these limitations in a March 2017 decision.

Municipal courts in New Jersey have jurisdiction over motor vehicle offenses, including DWI. A DWI case is assigned to the municipal court of the city, borough, town, or other municipality where the offense allegedly occurred. At trial, the municipal judge hears the arguments from the prosecution and the defendant, reviews the evidence, and renders a verdict. This is generally the only time the parties may present live witnesses, giving the municipal judge a unique perspective on the case.

According to Rule 3:23 of the New Jersey Rules of Court, a defendant has the right to appeal a DWI conviction in municipal court to the Law Division. This court may conduct a trial de novo, meaning that it is not bound by the municipal court’s factual or legal findings, and it may consider the case completely anew. That said, the Law Division typically only has access to the record of the proceedings in the municipal court. This includes all of the evidence presented at trial, but it does not include whatever understanding of the case may come from watching the testimony of witnesses in person. For this reason, courts are often unwilling to upset a municipal judge’s factual findings without evidence of a significant error.

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The statute defining driving while intoxicated (DWI) in New Jersey establishes two ways for prosecutors to prove guilt. First, they can prove beyond a reasonable doubt that a defendant “operate[d] a motor vehicle while under the influence of” alcohol or drugs. Alternatively, they can show that a defendant operated a motor vehicle while their blood alcohol content (BAC) was 0.08 percent or higher. Despite the common name of the offense, however, the statute says nothing about “intoxication.” It also omits another word commonly used in discussions of DWI, “impairment.” All the way back in 1964, the New Jersey Supreme Court ruled in State v. Johnson that a defendant’s actual impairment is not an essential element of DWI, and the ability to drive safely anyway is not a defense.

Operating a motor vehicle with a BAC of 0.08 percent or higher is sometimes known as DWI per se, since the BAC evidence effectively creates a legal presumption of guilt. A defendant can challenge BAC evidence by questioning the accuracy of the testing device. State law requires police to follow specific procedures when administering a breath test, and the device requires regular maintenance and careful calibration. A failure by police to follow proper procedures can result in the exclusion of test results at trial.

A DWI conviction is possible without BAC evidence, or even with evidence that a defendant’s BAC was less than 0.08 percent, if the state provides evidence that the defendant exhibited signs of intoxication. This usually involves eyewitness testimony from police officers and others. Challenging this sort of evidence might require impeaching a witness’ credibility or providing a counter-narrative to the prosecution’s story. A defendant can also challenge the prosecution’s entire case if they can show that the original traffic stop or arrest violated their Fourth Amendment rights.

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Driving while intoxicated (DWI) can affect a person’s life in nearly countless ways. Many potential consequences are not contained in the DWI statute itself. A recent decision by the New Jersey Appellate Division, N.J. Div. of Child Protection and Permanency v. T.S., demonstrates how a DWI case, even when it doesn’t result in a conviction, can have far-reaching consequences—in this case, charges of child endangerment.

New Jersey defines DWI in simple terms. A person commits an offense when they drive while “under the influence” of drugs or alcohol, or when they drive with a blood alcohol content (BAC) of 0.08 percent or higher. The statute focuses solely on the act of driving and the fact of “influence” by drugs or alcohol. A person’s ability to drive safely, even after a few drinks, is therefore not a factor under New Jersey law. While public safety is one of the central purposes of the DWI statute, the state is not required to prove that a defendant actually posed a direct danger to anyone.

Other areas of law are also concerned with the danger posed by certain activities. New Jersey law defines child abuse or neglect, in part, as “unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof.” In other words, behavior that poses a substantial risk of harm to a child could legally constitute child abuse or neglect, even if the child in question suffered no actual harm. This definition of child abuse or neglect applies to civil proceedings regarding child welfare, including the removal of a child from the home on a temporary or permanent basis. Unlike DWI proceedings, civil cases only require proof by a preponderance of evidence, rather than beyond a reasonable doubt.

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Courts in New Jersey encourage both prosecutors and defendants to explore alternatives to taking a case to trial. Most prosecutions in New Jersey do not go to trial, ending instead in a plea agreement, diversion, or dismissal. Defendants charged with criminal offenses may qualify for pretrial intervention (PTI), which allows them to “avoid ordinary prosecution by receiving early rehabilitative services or supervision.” Driving while intoxicated (DWI) is not a criminal offense under New Jersey law, meaning that PTI is not available for defendants charged with DWI in municipal court. The related offense of driving while license suspended (DWLS), however, can lead to criminal charges in certain situations. Information about PTI may therefore still be useful during a DWI case. A recent decision by the New Jersey Appellate Division, State v. Torres, reviews the criteria for PTI.

New Jersey law establishes PTI as a means of focusing on the “least burdensome form of prosecution possible” for qualifying defendants. Eligibility is generally limited to defendants with no prior convictions in New Jersey, nor in any other federal or state court. The statute does not define additional eligibility requirements, other than a presumption against eligibility for defendants charged with public corruption or domestic violence. Prosecutors may recommend a defendant for PTI based on various factors, including the severity of the alleged offense, the defendant’s age, and circumstances that suggest that ordinary prosecution would not be effective at deterring future illegal activity or serving justice.

The PTI statute can be found in Title 2C of the New Jersey Revised Statutes, also known as the New Jersey Code of Criminal Justice. The DWI statute, on the other hand, is found in Title 39, Motor Vehicles and Traffic Regulation. This title deals with motor vehicle offenses like speeding, reckless driving, and DWLS, in addition to DWI. Proceedings involving motor vehicle offenses are similar to criminal proceedings in most ways. Prosecutors are still required to prove guilt beyond a reasonable doubt, for example, but defendants charged with DWI are not entitled to a trial by jury. In certain situations, DWLS is covered by a criminal statute, such as when a person allegedly drives during a period of license suspension that resulted from a DWI conviction.

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The legal treatment of driving while intoxicated (DWI) varies from one state to another, with some states categorizing it as a criminal offense and others, including New Jersey, calling it a traffic or motor vehicle offense. Several recent media reports have questioned whether New Jersey’s DWI laws are “tough enough,” pointing to the risks allegedly posed by repeat offenders. The New Jersey Legislature has revised and amended the DWI statute many times, and several bills are currently pending that would increase some penalties and reduce others. A key question to consider when discussing the “toughness” of DWI laws is whether the purpose of these laws is to punish people who violate the law, prevent people from violating the law in the future, or some combination of the two. This particular dispute is at least as old as the legal system itself.

Every state defines DWI, in part, as driving with blood alcohol content (BAC) of 0.08 percent or higher. The differences between treating DWI as a criminal or traffic offense include the procedures courts must follow at trial, and the possible punishments resulting from a conviction. A DWI conviction in New Jersey, by itself, results in license suspension and a fine, as well as the possibility of jail time. A first-time offender with BAC of at least 0.15 percent must also install an ignition interlock device (IID) in their vehicle, both during and after the period of suspension. Second, third, and subsequent offenses also carry greater possible penalties, up to a maximum fine of $1,000, license suspension of ten years, and 180 days in jail.

In states where DWI is considered a criminal offense, penalties may be greater than in New Jersey, in terms of fine amount and length of jail sentence. The specific code section dealing with DWI in New Jersey, however, is not the only one involved in DWI enforcement. The New Jersey Motor Vehicle Code includes provisions penalizing drivers for refusing to submit to breath testing and for driving with a suspended license, as well as for circumstances like DWI with a minor passenger in the vehicle.
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New Jersey law imposes increasingly harsh penalties for subsequent convictions of driving while intoxicated (DWI) and refusal to submit to breath testing. Penalties for both offenses may include fines, a driver’s license suspension, and the mandatory use of an ignition interlock device. A conviction for DWI may also involve jail time. State law includes “step-down” provisions, however, that lessen the severity of a sentence if a sufficient amount of time has passed since the most recent prior conviction. The New Jersey Appellate Division recently ruled on an appeal involving a defendant’s refusal conviction, which followed three DWI convictions. The court’s ruling in State v. Clapper considered whether the step-down provisions, which only mention second and third DWI offenses, apply to subsequent refusal offenses.

The New Jersey DWI statute imposes progressively harsher penalties for (1) a first DWI conviction involving a blood alcohol content (BAC) of at least 0.08 percent but less than 0.10 percent, (2) a first offense involving a BAC of 0.10 percent or higher, (3) a second offense, and (4) a third or subsequent offense. The refusal statute imposes increasing penalties for (1) first, (2) second, and (3) third or subsequent offenses. Prior DWI convictions may be used to enhance the sentence for a refusal conviction, according to the Appellate Division’s 2015 ruling in State v. Taylor, but prior refusal convictions may not be used to enhance a DWI conviction.

Under the step-down provisions, if a second DWI offense occurs more than 10 years after the first, the court must impose the sentence for a first offense. Likewise, if a third offense occurs more than 10 years after the second, the court must treat it as a second offense. This applies to both DWI and refusal convictions under the system described in Taylor. Notably, the step-down provisions do not mention subsequent convictions after a third one.

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