Articles Posted in Effect of Arrest or Conviction

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A New Jersey appellate court recently considered the question of whether a defendant must inform the court of prior convictions that, under New Jersey law, could result in an enhanced sentence. In an unpublished February 2015 decision, State v. Kane, the court ruled that a defendant charged with driving while license suspended (DWLS) was not obligated to inform prosecutors or the court that the suspension was due to a driving while intoxicated (DWI) conviction. State motor vehicle and criminal statutes include enhanced penalties in certain DWLS cases where DWI was the reason for the suspension. The court rejected the state’s arguments that the defense’s failure to provide this information constituted fraud and a breach of attorney ethics rules.

The defendant was arrested in January 2012 in Ocean City for talking on a cell phone while driving. She was subject to a 10-year suspension of her driver’s license at the time, according to the court, because of multiple DWI convictions. She pleaded guilty to DWLS in municipal court that March. DWLS is normally a “non-indictable offense,” and the judge sentenced her to 30 days in jail, to be served intermittently.

New Jersey law prescribes enhanced penalties for a DWLS if the underlying reason for the license suspension is a DWI offense. About seven months before the defendant’s plea, in August 2011, a new criminal statute became effective that made the defendant’s DWLS offense an indictable offense, with substantially greater penalties. The statute allows prosecution of DWLS as a fourth-degree crime, as opposed to a traffic offense, if the license suspension was due to DWI, and the defendant has one or more prior DWLS convictions.
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New Jersey’s legal system has developed several methods to discourage people with convictions for driving while intoxicated (DWI) and related offenses from getting behind the wheel after drinking. Along with every other state and the District of Columbia, New Jersey requires the use of ignition interlock devices (IIDs) in certain situations. At least one state has gone much further in restricting people with convictions, or even just arrests, for DWI and other offenses. Utah’s “alcohol restricted driver” (ARD) law prohibits drivers from operating a vehicle with any alcohol in their system for periods ranging from two to ten years, with a lifetime ban in some circumstances.

In order to start a vehicle equipped with an IID, the person must blow into the device, which operates much like a breathalyzer or other breath-test machine. If the device determines that the driver’s blood alcohol content (BAC) is above a threshold amount, which is usually 0.05 percent in New Jersey, it prevents the vehicle from starting for a period of several hours. The “legal limit” for DWI is 0.08 percent.

New Jersey’s DWI statute makes installation of an IID mandatory for offenses involving a BAC result of 0.15 percent or higher, as well as first-offense convictions for refusal to submit to chemical testing. A judge has discretion to order an IID for lesser offenses. Driving with a BAC above the IID amount, but below the legal limit of 0.08 percent, is not automatically a violation under New Jersey law, but any attempt to circumvent the IID, including by driving someone else’s car after drinking, is considered a violation.
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Pending legislation in at least two states would restrict sales of alcohol to people convicted of DWI offenses. A bill in the New Mexico State House of Representatives would allow a court to include a prohibition on alcohol purchases in an order requiring use of an ignition interlock device (IID). A bill in the Oklahoma State Senate goes even farther, allowing a court to bar the purchase of alcohol by anyone convicted of DWI. Anyone providing alcohol to someone under such a restriction could face criminal liability. States have near-total control over the regulation of alcoholic beverages, and at least one state already has such a law on the books. Lawmakers and others have suggested similar legislation in Texas and Washington state, but New Jersey does not have a law allowing this sort of restriction.

The sale of alcoholic beverages was illegal throughout the United States during a period known as Prohibition, which began with the ratification of the Eighteenth Amendment to the Constitution in 1920. The Twenty-First Amendment, ratified in 1933, repealed the Eighteenth Amendment and left the regulation of alcoholic beverages up to the states. A series of Supreme Court decisions have explored the extent to which states may restrict the sale or purchase of alcohol. Alaska allows courts to order a person who has been convicted of DWI to “refrain from consuming alcoholic beverages,” and to prohibit him or her from purchasing alcohol. The state may issue a new driver’s license or other identification to a person subject to this restriction, which indicates the restriction.

New Mexico’s HB30 would amend the state’s IID law to allow a judge to prohibit a defendant from purchasing alcoholic beverages for as long as that individual is required to have an IID installed in his or her vehicle. Much like the Alaska law, the state would issue a new identification card indicating the alcohol restriction. The bill’s sponsor introduced it during the last legislative session in 2013. It passed the New Mexico House but failed to pass in the Senate. He introduced it again in December 2014. Continue reading

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New Jersey law directs courts to apply sentencing enhancements for a second driving while intoxicated (DWI) conviction, with additional enhancements for third and subsequent convictions. In certain circumstances, however, trial courts may not use sentencing enhancements when the statute might otherwise require them to do so. A “step-down” provision in the DWI statute, for example, directs courts not to apply sentencing enhancements if enough time has passed since the most recent prior conviction. We recently represented a client who wanted to use the step-down provision, but the trial court would not allow it. It said that he was limited to one use of the step-down provision, and he had already used it once before. The New Jersey Supreme Court ruled in our client’s favor, finding that the DWI statute allows use of the step-down provision more than once.

The step-down provision, found in the last paragraph of Section 39:4-50(a)(3) of the New Jersey Revised Statutes, states that if a person’s second DWI offense occurs more than 10 years after the first offense, the court must treat the second offense as a first offense during sentencing. If a third offense occurs more than 10 years after the second offense, the court must use the sentencing guidelines for a second offense. A 1990 decision from the New Jersey Supreme Court, State v. Laurick, sets another important limit on a court’s sentencing authority. A court may not use a prior DWI conviction to enhance a subsequent conviction if the defendant was not represented by counsel in the prior case.

The defendant in our case had prior DWI convictions from 1981, 1982, and 1994. The trial court applied second-offense sentencing enhancements in the 1994 case, since, while it was technically the third offense, it occurred more than 10 years after the most recent prior offense. Here is where the case can get confusing. The defendant was not represented by an attorney in the 1982 case, so the trial court should not have considered it during sentencing. An appellate court reduced his sentence for the 1994 offense to first-offense levels. Continue reading

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An arrest for alleged driving while intoxicated (DWI) in New Jersey has serious consequences, even before charges are filed or the case goes to trial. A driver could face license suspension and other administrative penalties that are largely separate from the court procedures for a DWI case. He or she also may face a charge of refusal to submit to chemical testing, and in some cases courts have held that simply not blowing hard enough into a breathalyzer machine could support a refusal conviction. Certain other criminal charges are common in alleged DWI cases, some of which could significantly increase the penalties that a prosecutor might seek in court.

Other Traffic Charges

Many, possibly most, DWI cases begin when a police officer pulls a driver over. An officer must have reasonable suspicion that a traffic offense has occurred for any evidence collected during the traffic stop to be admissible in court. If the officer can prove that he or she witnessed the driver violate a traffic law, such as by speeding, running a red light, or changing lanes without signaling, the stop is probably supported by reasonable suspicion. An officer also may pull over a car if it appeared that the driver was impaired based on how he or she was driving. Once the stop is underway, other evidence, like the “smell of alcohol” so often cited in court, may support a DWI charge.

Since a DWI arrest often originates with another alleged traffic violation, it stands to reason that DWI cases often involve other traffic charges. Many of these are minor offenses, like failing to use a turn signal or avoiding a traffic light, while others, such as driving with a suspended license, are relatively more serious. Even if a driver can prove that he or she was not drinking, he or she could face charges for careless or reckless driving. Continue reading

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A bill that was recently approved by the New Jersey State Senate Budget and Appropriations Committee (NJSBA) would change the requirements for ignition interlock devices (IIDs) in driving while intoxicated (DWI) cases. Under current New Jersey DWI law, an IID is only mandatory for second or subsequent convictions, or in cases where chemical testing shows a sufficiently high blood alcohol content (BAC). The proposed bill would make IIDs mandatory in all DWI cases across the state. The New Jersey Assembly passed a companion bill in June 2014. A previous version of the bill was passed by the state Senate, but not the Assembly, in 2013.

State law defines an IID as a device that “permit[s] a motor vehicle to be started only when the driver is sober.” The device must be installed on the dashboard of a DWI defendant’s vehicle. Prior to starting the vehicle, the driver must blow into the device, much like with an Alcotest machine or other breathalyzer. The device analyzes the breath sample and, if the BAC is reading is greater than the pre-programmed maximum, it prevents the vehicle’s ignition switch from sending a signal to the starter. In short, the driver may turn the key, but the car won’t start.

If the IID prevents operation of the vehicle, it may continue to do so for some programmed period of time to allow the driver to sober up. The accuracy and reliability of breathalyzer devices is a common issue in DWI cases, and IIDs can present similar problems. State law requires the Motor Vehicle Commission to certify IIDs and maintain a list of approved providers, but the devices require regular maintenance in order to function correctly. Continue reading

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The Appellate Division of the New Jersey Superior Court ruled in State v. Lawrence that a defendant should not have received an enhanced sentence for driving while intoxicated (DWI), even though he had two prior convictions. New Jersey law increases the penalties for second, third, and subsequent DWI convictions, but there are exceptions. The defendant relied on two facts in support of his argument against enhanced penalties. He was not represented by counsel during his first DWI case, and both his first and second DWI cases occurred more than 10 years before the current case. The Appellate Division found that, under a New Jersey statute and a New Jersey Supreme Court decision, these facts required the trial court to sentence the defendant as a first offender.

The defendant pleaded guilty to DWI before a municipal judge, after he admitted to drinking “two alcoholic beverages and two beers” before driving. The defendant had two prior DWI convictions from 1990 and 1994. Although this was his third offense, the judge sentenced him as a second offender on August 30, 2012.

New Jersey’s DWI statute imposes enhanced penalties for a second, third, and subsequent convictions. It makes exceptions, however, if enough time passes between convictions. The DWI statute, in § 39:4-50(a)(3), states that if the third offense takes place more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes. Since about 18 years elapsed between the defendant’s second and third offenses, the court applied the sentencing guidelines for a second offense. Continue reading

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New Jersey law deals very seriously with the traffic offense of driving while intoxicated (DWI). An arrest for DWI can result in a license suspension, if the State can prove the offense in court beyond a reasonable doubt. However, a person does not even need to be driving a vehicle, nor do they need to be intoxicated, to be charged with DWI under New Jersey law. The traffic offense of DWI also includes permitting another person to operate a vehicle while under the influence of drugs or alcohol. The New Jersey Supreme Court has considered cases involving this part of the statute several times and has consistently held that it is a key component of the state’s objective of preventing and punishing drunk driving.

Under New Jersey law, the offense of DWI is defined primarily as “operat[ing] a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or…with a blood alcohol concentration of 0.08% or more.” The statute also includes “permit[ting] another person [who meets the above definition] to operate a motor vehicle.” The New Jersey Supreme Court discussed this part of the statute in State v. Hessen in 1996, noting that “a person who allows an intoxicated person to drive” is “as blameworthy as the drunk driver.” State v. Kashi held that the “permitting” portion of the statute is not a separate offense from DWI, but rather an “alternative evidential method” of proving the offense of DWI.

Civil liability for damages caused by a drunk driver are fairly well-known, such as if a social host or bar serves alcohol to a visibly intoxicated person. The New Jersey Supreme Court affirmed this view in the 1984 case Kelly v. Gwinnell. Imposing quasi-criminal liability, however, requires a higher standard of proof than in a civil case. The statute does not make it clear what constitutes “permitting” an intoxicated person to operate a vehicle. In theory, anyone who comes into contact with an intoxicated person could inquire as to whether they intend to drive, but it would be unwieldy and unreasonably to impose quasi-criminal liability on all of those people. Several New Jersey courts have addressed the elements that a prosecutor must prove beyond a reasonable doubt. Continue reading

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A recent decision by the Superior Court of New Jersey, State v. O’Neill, highlights two important features of New Jersey driving while intoxicated (DWI) laws. First, the court held that, under New Jersey’s implied consent law, any response other than an unambiguous “yes” to an officer’s request to submit to breath testing may be deemed a refusal. Even verbal consent by a person to breath testing, as long as her mother remained with her, could be considered “refusal” under this interpretation of the law. Second, state law requires officers to read a statement regarding implied consent and refusal, and as long as an officer reads the statement prior to taking a breath sample, the state has fulfilled its duty under the law. This applies even if the statement omits information any defendant might reasonably find useful.

The defendant was stopped by a police officer in Bernard Township, New Jersey on January 19, 2013, allegedly for speeding. The officer determined that she had consumed alcohol before driving, although the court does not say how. After placing her under arrest and transporting her to police headquarters, the officer read the New Jersey Attorney General’s Standard Statement for Motor Vehicle Operators (the “Standard Statement”) aloud to her. The defendant responded that she would agree to testing if her mother could be with her. Because this response was “conditional,” rather than “yes,” the officer read the final section of the Standard Statement, which states that she could be charged with refusal for any answer “other than ‘yes.’” The defendant replied “no.”

The officer charged the defendant with DWI, refusal to submit to breath testing, speeding, and failing to produce documentation. The defendant filed a motion to dismiss the refusal charge in the municipal court, arguing that the state did not fulfill its statutory duties because it failed to advise her of the minimum penalties if she were to be convicted of refusal. The municipal court denied her motion. The defendant pleaded guilty to DWI, and entered a conditional plea of guilty to refusal, reserving her right to appeal the dismissal motion. The Law Division denied her appeal, and the case went before the Superior Court. Continue reading

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Discussing legal matters on the internet is really never a good idea, and this is especially true with regard to criminal cases. A Michigan woman, who was on probation for DWI, may be returning to jail because of a Facebook post in which she reportedly admitted to drinking alcohol. The probation department, alerted by local police, tried to investigate further, and subsequently asked the court to rule her in violation of the terms of her probation. This could result in her serving the actual jail term included in her conviction.

The woman was convicted of DWI and put on probation in 2012. She was reportedly participating in a specialized probation program for DWI offenders that required her to submit to random breath tests. The probation department brought in over two hundred “high risk probationers,” including her, for testing over the St. Patrick’s Day weekend. In a Facebook post later that day, she stated that she passed the breath test even though she had drank the previous day. She reportedly only had a few weeks left on her probation period at the time.

A police officer saw the Facebook post and notified the probation department. Since consuming alcohol could constitute a violation of her probation, the probation department ordered her to submit to additional testing. A probation officer called her to tell her to come in for a urine test, which would reveal whether she had consumed any alcohol during the previous eighty hours. The woman allegedly hung up on the probation officer. The department considered this a violation of her probation, and notified the court. Continue reading

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