Motor Vehicle Stop

November 28, 2014

Court Ruling May Make Footage of Traffic Stops Available Earlier in New Jersey DWI Cases

Two recent rulings from a New Jersey court may allow defendants and the public to view police dashboard camera footage from traffic stops. The plaintiffs sought videos from specific stops, both involving alleged police misconduct, under the state’s Open Public Records Act (OPRA). The Ocean County Prosecutor’s Office (OCPO), a defendant in both cases, refused to produce the footage. The judge ruled for the plaintiffs, which could allow the public to view police camera footage without the formal discovery process in a criminal case. For defendants charged with driving while intoxicated (DWI), this means that they could see footage of their traffic stop much earlier in the case.

A New Jersey law signed by the governor in September makes cameras mandatory for all vehicles acquired by police departments after the law takes effect in March 2015. Many police departments already use dashboard cameras, and some are testing cameras worn by officers. These cameras present both advantages and disadvantages for the public. They are widely promoted as a means of preventing police abuses, but the presence of a camera recording every interaction between police and the public has also raised privacy concerns.

The cost of complying with open records requests is a significant factor. Police in Seattle, Washington considered scrapping a plan to equip officers with body cameras after receiving an anonymous request for daily police video updates, including written reports and license plate searches in addition to the videos themselves. He dropped his request upon reaching an unconventional deal with the police department, but the expense of making police videos available to the public could be a concern for other departments that could affect defendants’ rights to the footage. This was not an issue, however, in the two recent New Jersey court decisions. Continue reading

October 30, 2014

Driver Successfully Fights DWI by Citing First Amendment

by Evan M. Levow

The act of flashing one’s headlights or high beams at another driver can have many different meanings, one of which is to warn that a speed trap is ahead. Some states have enacted laws prohibiting this practice, ostensibly for public safety. New Jersey’s statute, for example, prohibits flashing headlights that are “projected into the eyes of the oncoming driver.” These laws tend to discourage communication among drivers about speed traps, and they give police a reason to pull people over. These two purposes came into direct conflict in a recent DWI case in New Mexico. A woman successfully argued that flashing her high beams at an oncoming car, which turned out to be a police vehicle, was protected free speech, and that the officer therefore lacked probable cause to pull her over.

The New Mexico woman was pulled over at around 10:00 p.m. on January 25, 2014. She stated that she thought the oncoming car had its high beams on, so she quickly flashed her high beams back and honked her car horn. The other car turned around, activated its emergency lights, and pulled her over. She was charged with violating a high-beam ordinance as well as aggravated DWI. The judge granted her motion to suppress evidence of her field sobriety test and chemical test results, finding that she had engaged in speech protected by the First Amendment. This resulted in the dismissal of the entire case. She has also filed a lawsuit against the city and the officer for civil rights violations.

Drivers in several states have successfully challenged high-beam citations on free-speech grounds. A federal judge in Missouri granted a permanent injunction in April 2014 that prohibited the town of Ellisville from enforcing a law against flashing headlights to warn of speed traps, finding that the plaintiff was likely to prevail on his free speech claims. An Oregon judge ruled that high-beam charges violated a driver’s free-speech rights under the state constitution, and a Florida judge issued a similar ruling in May 2012 applying the U.S. Constitution. Continue reading

October 1, 2014

New Jersey Law Enforcement Patrol Vehicles Required to Have Video Cameras Under New Law, Funds to Come from New DWI Surcharges

by Evan M. Levow

Police patrol cars in New Jersey must be equipped with video cameras under a new law passed by the New Jersey Legislature and signed by the Governor in September 2014. The law takes effect during a time when police accountability is a topic of national interest. Video cameras, either worn by the police officer or mounted in the police vehicle, are often proposed as a means of curbing civil rights abuses. The original sponsor of the bill, Assemblyman Paul Moriarty, was the subject of a traffic stop and an arrest for alleged DWI in 2012. Video footage from a camera in the officer’s car differed significantly from the officer’s report of the stop and ultimately exonerated Moriarty.

Moriarty was arrested on July 31, 2012 in Washington Township, New Jersey after a traffic stop. The officer who pulled Moriarty over claimed that Moriarty cut him off after making an illegal lane change. Moriarty refused to submit to a breath test, resulting in a criminal charge of refusal as well as DWI. Video of the stop, taken from a dashboard camera in the officer’s vehicle, reportedly contradicted the officer’s account of the stop. The prosecutor dismissed the charges against Moriarty in May 2013 after concluding that evidence obtained from the stop would be inadmissible.

The officer faced multiple criminal charges in the aftermath of the arrest, including perjury, official misconduct, and tampering with public records. Moriarty filed at least two civil suits in connection with the incident: a defamation suit against a car dealership for allegedly false statements by employees that led to the traffic stop, and a civil rights claim against the police department and the arresting officer. Being a New Jersey Assemblyman, Moriarty also took steps to make the type of evidence that exonerated him available to every DWI defendant. Continue reading

July 2, 2014

Courts Change Procedures for Issuing Warrants After Supreme Court Limits Warrantless Blood Testing of DWI Suspects

by Evan M. Levow

A decision issued by the U.S. Supreme Court last year limits the ability of police to take a blood sample from a DWI suspect without consent or a warrant. Missouri v. McNeely, 133 S.Ct. 1552 (2013). The Fourth Amendment protects people from unreasonable searches and seizures, and generally requires law enforcement to obtain a warrant before searching private property. Police can claim “exigent circumstances” to justify a warrantless search, meaning that in a specific emergency situation, they cannot take the time to obtain a warrant. The McNeely case addressed claims by police that the human body’s process of metabolizing alcohol was an exigent circumstance that justified taking a blood sample without a warrant. In response to the decision, the New Jersey Supreme Court has modified its procedures for search warrant requests to ensure that judges are available to issue warrants.

The defendant in McNeely was stopped by a highway patrolman for speeding. The officer claims that defendant did not perform well in a field sobriety test, and he refused a breath test. En route to the police station, the defendant refused a breath test again, so the officer diverted to a hospital and directed a hospital technician to take a blood sample. The defendant did not consent to having blood drawn, and the officer did not obtain a warrant. Lab testing showed blood alcohol content (BAC) of 0.154 percent, almost twice the legal limit of 0.08 percent.

The state charged the defendant with driving while intoxicated, but the court granted the defendant’s motion to suppress. It held that the warrantless blood test violated his Fourth Amendment rights. When the Missouri Supreme Court affirmed the decision, the U.S. Supreme Court took the case in order to resolve a conflict with its own prior decision in Schmerber v. California, 384 U.S. 757 (1966). That case held that an officer might reasonably conclude that the breakdown of alcohol in the bloodstream constituted “exigent circumstances,” id. at 770-71, but limited its holding to the specific circumstances of the case. In McNeely, the court rejected establishing a “per se rule” that alcohol metabolism justifies a warrantless blood test. 133 S.Ct. at 1561. Continue reading

May 12, 2011

New Jersey DWI Car Stop Based on a “Tip Call”

by Evan M. Levow

Most New Jersey DWI automobile stops occur when a police officer has personally viewed a traffic violation. The officer then reports the violation in his or her report, and this is then the subject of scrutiny as to whether the officer had the requisite “reasonable articulable suspicion of criminal activity” required to make a stop based on constitutional law, i.e. the Fourth Amendment.

More and more, since almost everyone has a cell phone with them on the road, stops are often being made based on citizen tips — other drivers on the road who view erratic driving and dial 911 or the local police department. These are particularly interesting cases that add an additional layer to what your qualified New Jersey DWI lawyer should be doing in your case.

The law on anonymous tips, is that the tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity. The analysis has changed, however, with 911 calls. The New Jersey Supreme Court stated that a 911 caller “place[s] his anonymity at risk by virtue of using the 9-1-1 system” because the records required to be made of such calls “provide the police with an ability to trace the identity of the caller in a manner that enhances his reliability.” State v. Golotta, 178 N.J. 205, 225-26 (2003). The Court said that such a call should not be ” ‘viewed with the same degree of suspicion that applies to a tip by a confidential informant.’