DWI Information

December 7, 2017

“Dry Towns” in New Jersey Often Have the Most DWI Arrests

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.

October 23, 2017

Does the New Jersey DWI Statute Apply to Bicycles?

by Evan M. Levow

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.

October 22, 2017

Understanding the Scope of Courts’ Authority in New Jersey DWI Appeals

by Evan M. Levow

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.

October 21, 2017

Ability to Drive Regardless of Alcohol Is Not a Defense to DWI in New Jersey

by Evan M. Levow

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.

October 14, 2017

New Jersey DWI Case Leads to Family Court Proceedings

by Evan M. Levow

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.

October 12, 2017

How Pretrial Intervention Relates to New Jersey DWI Cases

by Evan M. Levow

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.

August 18, 2017

New Jersey Media Examine “Toughness” of State DWI Laws

by Evan M. Levow

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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July 26, 2017

New Jersey Appellate Division Addresses DWI Step-Down Provisions in Refusal Case

by Evan M. Levow

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.

February 13, 2017

DWI Arrests Across State Lines from New Jersey Can Have Very Different Consequences

by Evan M. Levow

Most features of law enforcement in the U.S. operate at the state and local levels. These include traffic laws, like those related to driving while intoxicated (DWI). The legal system in New Jersey, like all states, categorizes alleged offenses based on factors like the type of activity involved and the severity of the harm allegedly caused. Major offenses are classified as felonies, and less serious offenses are considered misdemeanors. Traffic offenses are generally not considered criminal offenses at all, although they can still result in fines and jail time. New Jersey treats DWI as a traffic offense in all cases, but other states, like our neighbor, New York, take a different view. A recent case involving a New Jersey resident driving in New York illustrates the difference. An arrest for DWI, combined with a blood alcohol content (BAC) above a certain level and a prior DWI conviction, resulted in felony criminal charges.

DWI and most related offenses, such as a refusal to submit to breath testing and driving with a suspended license, are considered traffic offenses under New Jersey law. Despite the lack of the “criminal” designation, the penalties for a conviction can still be quite serious. A third or subsequent conviction for DWI, for example, results in a minimum jail sentence of 180 days, with credit for up to 90 days in a rehabilitation program. The only DWI-related offense that is considered “criminal” under New Jersey law occurs when a person drives with a suspended license, and the license suspension is due to a prior DWI conviction. This is a “fourth degree crime” and carries a mandatory minimum jail sentence of 180 days.

New York, much like New Jersey, codifies its DWI laws in the Vehicle & Traffic Law (VTL), rather than its Penal Law. The statute distinguishes among “driving while ability impaired” by alcohol, driving while intoxicated by alcohol, and “driving while ability impaired by drugs.” It identifies “driving while intoxicated per se” as driving with a BAC of 0.08 or higher, and it defines the offense of “aggravated driving while intoxicated” as either (1) driving with a BAC of 0.18 percent or higher or (2) driving while impaired with a child, age 15 or younger, in the car.

January 24, 2017

DWI Case Alleges Impairment by Caffeine, Rather than Alcohol

by Evan M. Levow

The New Jersey traffic offense of driving while intoxicated (DWI) is not limited to intoxication due to alcohol. The state can charge a driver with DWI based on the alleged presence of almost any substance that can cause impairment. A case currently pending in California demonstrates an unexpected example of this aspect of DWI law. The driver is facing DWI charges based on alleged impairment by caffeine. This type of DWI charge is probably possible under New Jersey’s DWI statute, although no reported court decisions specifically mention it. A bill currently pending in the New Jersey Legislature could prohibit drinking coffee while driving, although it would do so for reasons that are not directly related to DWI prevention.

New Jersey’s DWI statute establishes two types of DWI offenses. If a person drives with a blood alcohol concentration (BAC) of 0.08 percent or more, that is considered DWI per se. The other type of DWI offense involves operating a motor vehicle “while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug.” It is possible for the state to charge someone with DWI even if their BAC was less than 0.08 percent or in the absence of any BAC evidence, but prosecutors tend to favor the use of BAC in order to prove guilt. In a 2010 decision, State v. Marquez, the New Jersey Supreme Court called BAC “the most concrete and important piece of evidence” in a DWI case.

The term “habit-producing drug” is generally construed to mean illegal drugs or prescription medications. It could hypothetically include caffeine, which is known to create both physical and psychological dependence. New Jersey appellate courts have mentioned caffeine in the context of DWI, but it does not appear that they have ever dealt with it as an alleged intoxicant. The Appellate Division considered a DWI case in 2011, State v. Driscoll, in which the defendant was convicted of DWI despite zero-percent BAC, in part based on poor performance on the horizontal gaze nystagmus (HGN) test. The defendant had a prescription for Fioricet with codeine, which also contains caffeine. The court reversed her conviction. The court also cited caffeine as a possible complicating factor in HGN tests in a 2000 decision, State v. Doriguzzi.