DWI Information

March 13, 2016

New Jersey, Other States Review Standards for “Drugged Driving” as Medical Marijuana Laws Take Effect

Legal prohibitions against marijuana are falling aside all across the country, as a majority of U.S. states now permit at least limited use of the drug for medical purposes. New Jersey has enacted a medical marijuana statute that allows use with a prescription and under a doctor’s supervision. A handful of states have legalized marijuana entirely, while other states, like New York, have decriminalized its use. This means that, while recreational marijuana use is still against the law in New York, it is no longer considered a criminal offense. Driving under the influence of drugs (DUID) has always been a concern for law enforcement alongside driving while intoxicated (DWI). Widespread legalization of marijuana for various uses has led to renewed attention to the issue, as well as attempts to amend existing laws in New Jersey and elsewhere.

Marijuana remains a Schedule I controlled substance under New Jersey law, but the Compassionate Use Medical Marijuana Act made the cultivation, sale, possession, and use of marijuana legal for specific purposes, under strict medical guidelines. Under current New Jersey law, the offense of DWI includes driving while under the influence of a “narcotic, hallucinogenic or habit-producing drug.” The statute does not specify an amount of any particular drug that must be present in a person’s body at the time they were driving, with the well-known exception of alcohol. A person with a blood alcohol concentration (BAC) of 0.08 percent is presumed to be legally impaired. This is known as a “per se standard.” Some states do identify a per se standard for particular drugs, such as Pennsylvania’s requirement of one nanogram of THC, the active component of marijuana, per milliliter of blood.

At least 11 states have adopted “zero tolerance” DUID policies, meaning that any amount of an illegal controlled substance in a person’s system meets the per se standard for impairment. Since different drugs remain in a person’s bloodstream for different periods of time, most states use tests that detect the presence of the drug or byproducts created as the body metabolizes the drug, known as metabolites. New Jersey’s DWI statute makes no specific mention of either a per se standard or a zero tolerance policy.

February 1, 2016

Defendant Appeals Conviction for Driving While License Suspended to Avoid Jail

by Evan M. Levow

In New Jersey, driving while intoxicated (DWI) is considered a motor vehicle offense, not a criminal offense. This has important implications for how a DWI case may proceed. In most DWI cases, jail time is largely at the court’s discretion, but fines and driver’s license suspensions are not. One situation exists, however, in which an offense directly related to DWI is considered a criminal offense, which has a mandatory minimum sentence of 180 days. This occurs when a person is charged with driving while license suspended (DWLS), when the suspension is due to a conviction for DWI or certain related offenses. A New Jersey appellate court recently considered an appeal of a conviction under this statute in State v. Wagner.

A first-time DWI conviction carries a mandatory license suspension of three months. The length of the suspension increases for subsequent convictions, up to a maximum of 10 years. Other offenses may also lead to the suspension of one’s driver’s license, so the state has a DWLS statute that classifies the general act of driving with a suspended license as a motor vehicle offense. Penalties include a fine and, in some circumstances, the revocation of the defendant’s motor vehicle registration.

January 23, 2016

New Law Makes Expungement of Criminal Records in New Jersey Easier, but Still Does Not Include DWI

by Evan M. Levow

A new law that will take effect in New Jersey in several months will reduce the waiting periods for the expungement of criminal records, which is the process by which a person may have records of arrests, charges, and convictions removed from the public record. Unfortunately, New Jersey law does not allow expungement in driving while intoxicated (DWI) cases. Post-conviction relief (PCR) is the only means of removing a DWI case from one’s driving record. The new law is still good news for New Jersey, and it should be of interest to people charged with a criminal offense in connection with a DWI.

New Jersey law defines “expungement” as “the extraction and isolation of all records on file” with courts, law enforcement agencies, jails, and prisons regarding arrests, trials, convictions, and other dispositions. Records to be expunged include warrants, jail rosters, fingerprints, mugshots, and court dockets. Certain serious criminal offenses are excluded from eligibility for expungement, such as murder, manslaughter, rape, robbery, arson, and conspiracy to commit any of the listed offenses. For any other criminal offense, a person may petition for expungement after a specified period of time has elapsed, provided they have no other criminal convictions and meet the statute’s other requirements. For disorderly persons offenses and petty disorderly persons offenses, the waiting period before eligibility for expungement is shorter than for criminal offenses.

Motor vehicle offenses, which include DWI, are expressly excluded from eligibility for expungement. The only method allowed by New Jersey law for removing a DWI from a driving record is the PCR process, by which a person files a petition in the municipal court that handled the DWI case. Rule 7:10-2(c) of the New Jersey Rules of Court sets out the grounds for PCR, most of which relate to circumstances at the time of the conviction. These include a violation of the petitioner’s constitutional rights during conviction proceedings, the court’s lack of jurisdiction to impose a sentence, and the imposition of a sentence that deviates from state law. The rule also allows PCR based on common-law principles and grounds found in habeas corpus cases. In other words, PCR is only available upon a showing of error or impropriety during the original DWI proceeding, while expungement is often available based on good behavior and the passage of time.

January 19, 2016

New Jersey Laws Regarding Alcohol, Minors, and DWI

by Evan M. Levow

New Jersey law regulates alcohol in numerous ways, from licensing sellers to penalizing the possession of alcohol by minors. These laws are distributed among various state codes, including the provisions on driving while intoxicated (DWI) found in Title 39, “Motor Vehicles and Traffic Regulation.” Laws dealing with the possession of alcohol by minors, defined as anyone under the age of 21 years, are found in both Title 33, “Intoxicating Liquors,” and Title 2C, the New Jersey Code of Criminal Justice. Local governments in New Jersey, such as cities and boroughs, may enact their own ordinances regarding MIP, which has created some interesting legal history. The offense of minor in possession of alcohol (MIP) has some similarities to DWI law in New Jersey.

The most obvious similarity between DWI and MIP is that they both involve alcohol. They may also both result in a driver’s license suspension. If we look a bit deeper, we see that neither offense is generally considered “criminal” under state law. DWI is a traffic violation, while MIP is a “disorderly persons offense,” meaning that it can only result in a fine, not jail time, and it does not result in a criminal conviction record—although it might still appear in a background check. Since prosecutions for DWI or MIP are not considered criminal proceedings, a defendant is not entitled by law to a trial by jury or other features of the criminal justice system.

The New Jersey Code of Criminal Justice states that a minor commits an offense if they “knowingly possess[ alcohol] without authority,” or if they “knowingly consume[]” alcohol in public, in a school, or in a motor vehicle. If the person is in a vehicle, the statute imposes an additional penalty of six months’ license suspension, apparently regardless of whether the person was driving.

December 29, 2015

Federal Agency Calls for Further Lowering of the Legal BAC Limit in DWI Cases

by Evan M. Levow

Laws in all 50 U.S. states, the District of Columbia, and Puerto Rico state that a person who drives with a blood alcohol content (BAC) of 0.08 percent or higher is presumed to have committed the offense of driving while intoxicated (DWI). This “legal limit” for BAC may be lower for certain individuals, including people under the age of 21, school bus drivers, and commercial truckers. Laws against DWI have existed for almost as long as the automobile itself, but the use of BAC as an indicator of impairment is much more recent. The National Transportation Safety Board (NTSB), the federal agency that investigates major accidents and makes safety recommendations, has recommended lowering the legal limit even further, to 0.05 percent. This has met with opposition from unexpected sources and has failed to gain much traction among state lawmakers.

New Jersey was one of the first states to enact a law against DWI. The law, passed in 1906, simply stated that “[n]o intoxicated person shall drive a motor vehicle.” Current law in this state, of course, goes into much more detail. A first DWI offense with BAC of at least 0.08 percent, but less than 0.10 percent, is subject to penalties that might include a fine between $250 and $400, up to 30 days’ imprisonment, and a three-month license suspension. Penalties are higher if the BAC is 0.10 percent or above, or for a second or subsequent offense. BAC evidence is not necessary for a New Jersey court to convict someone of DWI, but it is a prominent part of many, possibly most, DWI cases.

The NTSB has recommended lowering the legal BAC limit to 0.05 percent since at least 2013. It issued a report in April of that year with multiple proposed legislative changes, including a 0.05 percent legal limit. NTSB officials have repeated this recommendation several times since then, most recently in mid-December 2015. Supporters claim that it will further reduce the number of traffic fatalities, while others say that a lower BAC limit is unlikely to have such an effect. Mothers Against Drunk Driving (MADD) came out against the recommendation in 2013, saying it would be a “waste of time.”

December 3, 2015

New Jersey DWI Arrests, Part 2: Beyond Traffic Stops

by Evan M. Levow

New Jersey police arrested a man in late October for suspected driving while intoxicated (DWI), after the vehicle he was allegedly driving collided with another vehicle. A traffic stop is perhaps considered the usual way a DWI arrest occurs, but it is not the only way. Police can detain a person on suspicion of DWI through any legal means of establishing probable cause, including random stops for the purpose of deterring DWI. New Jersey courts have held that an arresting officer does not have to witness a person actually driving to have probable cause to suspect DWI. This series looks at the various grounds for a DWI arrest.

Accidents

The recent story involves an arrest that occurred around midnight on Halloween. According to news reports, a vehicle collided with a police cruiser, causing the cruiser to go onto a concrete embankment and hit a utility pole. Failing to avoid an accident can, by itself, be a traffic offense under New Jersey law. In this case, however, police also suspected the person alleged to have been driving the vehicle of DWI.

Suspicion of DWI often arises from physical signs of intoxication, such as the odor of alcohol or the presence of bloodshot eyes, and from a person’s behavior, such as slurred speech, lack of coordination, or swaying while standing. The driver was reportedly charged with DWI with an enhancement because the alleged incident occurred in a school zone, as well as refusal to submit to breath testing and failure to yield to an emergency vehicle.

December 1, 2015

New Jersey DWI Arrests, Part 1: Traffic Stops

by Evan M. Levow

The most common conception of a DWI arrest in the popular imagination is, perhaps, one that takes place after an officer pulls over a car based on suspicion that the driver is intoxicated or otherwise impaired. This accounts for many DWI arrests, but it is by no means the only way a person could find themselves facing DWI charges. In this series of posts, we will review the various ways police may make an arrest for suspected DWI.

Traffic Stops on Suspicion of DWI

Police officers are legally authorized to stop a vehicle and question its driver if they have a reasonable suspicion that the person is in the process of committing a crime, has recently committed a crime, or is preparing to commit a crime in the near future. This is commonly known as a “Terry stop,” after the U.S. Supreme Court’s 1968 decision in Terry v. Ohio.

An officer can claim reasonable suspicion of DWI based on alleged indicators like the inability to stay in a lane of traffic, weaving between lanes of traffic, colliding with other vehicles or roadside objects, and generally erratic driving. It can even include overly cautious driving in some situations, although that could also merely be an indicator that the driver is transporting something fragile.

November 24, 2015

New Jersey Township Offers Free Rides in Effort to Reduce DWI

by Evan M. Levow

Police departments and state and local governments around the country frequently roll out new plans for reducing the incidence of driving while intoxicated (DWI) in their jurisdictions. Usually, these plans involve extra police patrols, DWI checkpoints, or increased penalties for certain acts associated with DWI. Whether measures like this are effective is a matter of intense debate. Evesham Township, New Jersey is taking a different approach. It began a program in September 2015 that offers rides home to people who, after a night out, are not able to drive themselves. Programs like this could be beneficial in New Jersey, where state DWI law prohibits not only operating a vehicle while intoxicated but also, in some cases, permitting an intoxicated person to drive.

Evesham Township’s program began in September as a 30-day pilot program using shuttles and a local designated driver service. In October, the township announced that it was extending the program through the holidays and that it was doing so through a partnership with the ride-sharing company Uber and a designated driver service called BeMyDD. This is reportedly the first program of its kind in the country.

Uber, which is based in San Francisco, connects users with drivers through a mobile app. Its service is reportedly available in at least 300 cities around the world, including many parts of New Jersey. BeMyDD began in Cleveland several years ago and has spread to other U.S. cities. It allows people to essentially hire a driver at an hourly rate to take them to bars, restaurants, and other locations.

November 14, 2015

Grounds for Post-Conviction Relief in New Jersey DWI Cases

by Evan M. Levow

Post-conviction relief (PCR) is a critically important procedure in many types of cases in New Jersey, including—and perhaps especially including—convictions for driving while intoxicated (DWI). Courts can use prior DWI convictions as grounds for enhancing penalties for a current DWI conviction. This is where PCR often plays an essential role.

Grounds for Relief

Numerous possible grounds exist for PCR, including:

– The defendant’s guilty plea did not meet the requirements of the New Jersey Rules of Court. Rule 7:6-2(a) states that a municipal court, before accepting a guilty plea, must determine that the defendant is voluntarily making the plea, and that the defendant understands the charges and the consequences of pleading guilty. The defendant must also state a “factual basis” for their guilty plea.
– The defendant was unrepresented by counsel, and the court did not make a finding on the record, as required by Rule 7:6-2(a), that the defendant had “knowing[ly] and intelligent[ly]” waived the right to counsel.
– The defendant received ineffective assistance of counsel.
– The DWI trial, and/or the conviction and sentence, violated the defendant’s rights under the U.S. Constitution, the New Jersey Constitution, or New Jersey law.
– The sentence imposed by the court was illegal. This last ground for PCR merits additional examination.

October 5, 2015

Medical Marijuana Patient Acquitted of DWI

by Evan M. Levow

The offense of driving while intoxicated (DWI) includes more than just alcohol. Almost any drug that causes an impairment can lead to a DWI charge. The law in New Jersey and other states specifically sets a “legal limit” for blood alcohol content (BAC), but it does not always specify an amount for other substances. Different substances also require different tests, and not all tests are reliable. A driver charged with DWI in Colorado due to a positive marijuana test recently obtained an acquittal after she argued that the marijuana test cannot prove that she was impaired at the time she was driving. Colorado law is significantly different from New Jersey law on this issue, but this state’s law is gradually changing.

Colorado is one of a handful of states to have effectively legalized marijuana for both medical and recreational use. In New Jersey, marijuana remains a Schedule I controlled substance, except for some narrow exceptions allowed by the New Jersey Compassionate Use Medical Marijuana Act (CUMMA). The defendant in the Colorado case reportedly moved to that state specifically so that she could use marijuana for her chronic back pain. An officer pulled her over in June 2014, not for erratic driving but for an expired license plate tag. After noticing the smell of marijuana, the officer required her to perform field sobriety tests, which she allegedly failed. A blood test showed a marijuana level of 19 nanograms, well above the state’s limit of five nanograms.

Prosecutors charged the defendant with DWI. They offered her a plea deal, which she reportedly rejected because it would require her to give up her medical marijuana card for up to two years. The case went to a jury trial, which is allowed in Colorado, unlike New Jersey. She argued that her test results were not conclusive evidence that she was impaired at the time she was driving her vehicle, since THC, the active component of marijuana, lingers in the bloodstream far longer than alcohol or other substances. While a blood test to determine BAC might indicate that a person recently consumed alcohol, she argued, a blood test for marijuana cannot tell whether or not a person is actually impaired. The jury agreed and nullified the charges.