New Jersey DWI Attorney Blog

June 30, 2016

Field Sobriety Tests Face Legal and Scientific Challenges in New Jersey DWI Cases

Police and prosecutors in New Jersey must prove that a person charged with driving while intoxicated (DWI) was impaired by alcohol or drugs when they were operating a vehicle. They frequently do this with evidence that a person’s blood alcohol concentration (BAC) was 0.08 percent or higher, but they can also prove impairment in other ways. An officer’s observations of a driver’s behavior and appearance, when combined with evidence of the officer’s experience in assessing intoxication, can serve as evidence for the purpose of a DWI prosecution. Field sobriety tests (FSTs) allow officers to evaluate whether a person shows physical signs of intoxication and then offer testimony about how the person performed. The reliability of FSTs has some scientific support, but they remain controversial and subject to challenge by DWI defendants.

New Jersey’s implied consent law requires drivers to submit breath samples during DWI investigations, but this usually happens after an arrest. An officer who has stopped a vehicle on suspicion of DWI might use FSTs to establish probable cause for an arrest. The earliest examples of FSTs probably date back to the beginning of the automobile era. No uniform standard for FSTs existed in the U.S. prior to the 1970s. Different police departments developed their own FST regimens, with little to no scientific study into their accuracy or reliability in assessing impairment.

In 1975, the National Highway Traffic Safety Administration (NHTSA) retained the Southern California Research Institute (SCRI) to research multiple FSTs in order to identify the ones with the highest accuracy. The SCRI conducted laboratory and field tests, resulting in three Standardized Field Sobriety Tests (SFSTs) that the NHTSA now promotes as a uniform standard for the whole country. They are the Walk-and-Turn test, the One-Leg-Stand test, and the Horizontal Gaze Nystagmus (HGN) test.

June 15, 2016

Conditional Guilty Plea Required in New Jersey DWI Cases to Preserve Certain Issues for Appeal, According to Court

by Evan M. Levow

A defendant charged with driving while intoxicated (DWI) in New Jersey may choose to plead guilty or may face a trial before a municipal judge. If the judge finds them guilty, they may be able to appeal to the New Jersey Superior Court, Law Division, and from there to the Appellate Division and the New Jersey Supreme Court. A defendant can also appeal a municipal court’s denial of a pretrial motion, but this requires entering a conditional guilty plea. The New Jersey Rules of Court (NJRC) include separate provisions for appealing the denial of a motion to suppress, which asserts constitutional rights under the Fourth Amendment, but courts have held that this type of appeal also requires a conditional plea of guilty. In February 2016, the Appellate Division ruled in State v. Ricca that a DWI defendant must conditionally plead guilty in order to appeal the denial of a suppression motion.

A “conditional plea” is one in which a defendant reserves the right to appeal on specific issues. In criminal cases, Rule 3:9-3(f) of the NJRC states that a defendant must enter a conditional plea of guilty in order “to appeal from the adverse determination of any specified pretrial motion.” If the appeal is successful, the defendant can withdraw their plea. Rule 3:5-7(d) states that a defendant can appeal the denial of a motion to suppress even if they have pleaded guilty in the case. This seems to differ from the more general rule, but the Appellate Division held in 1981’s State v. Morales that this sort of appeal also requires a conditional plea of guilty. The New Jersey Supreme Court reiterated this holding in 2003’s State v. Greeley.

A separate set of rules in the NJRC governs proceedings in municipal court, which are not considered “criminal” cases under state law. The rules regarding appeals of pretrial motions, however, are basically identical to those for criminal cases. Rule 7:6-2(c) establishes a conditional guilty plea as a prerequisite for an appeal of a pretrial motion. Rule 7:5-2(c)(2) states that a defendant can appeal a motion to suppress even after pleading guilty. The Greeley decision included this rule with Rule 3:5-7(d) in finding that a defendant must enter a conditional plea.

June 13, 2016

Uncounseled Guilty Plea Should Not Count as a Prior Offense in New Jersey DWI Case, According to Appellate Division

by Evan M. Levow

New Jersey courts have established various rules that protect defendants’ Sixth Amendment rights in driving while intoxicated (DWI) cases. One such rule, established by the New Jersey Supreme Court in 1990 in State v. Laurick, mitigates certain penalties imposed on a DWI defendant if they pleaded guilty in a prior DWI case without an attorney, and they were not given the opportunity to waive their right to counsel. The New Jersey Appellate Division applied this rule earlier this year in State v. Donnelly, reversing a DWI defendant’s jail sentence and remanding the case to the trial court.

Penalties for a DWI conviction vary, in part, based on a defendant’s number of prior DWI convictions. A first offense includes a penalty of up to 30 days in jail. For a second offense, state law imposes a minimum jail term of 48 hours, up to a maximum of 90 days. A third or subsequent offense carries a mandatory minimum jail sentence of 180 days. The Laurick decision set limits on courts’ ability to use prior uncounseled guilty pleas to impose enhanced jail sentences in DWI cases. The court cited a 1971 case, Rodriguez v. Rosenblatt, which held that defendants have a right to counsel whenever they face a “consequence of magnitude,” which includes a jail sentence of any length.

The defendant in Laurick was arrested for DWI in 1985. He had a prior DWI conviction from 1982, in which he pled guilty without an attorney. He stated that he was unaware of his right to counsel at that time, and that the court did not advise him of this right. He was sentenced in 1987 as a first offender with regard to the jail term, on the basis that the 1982 guilty plea should not count as a prior conviction. The New Jersey Supreme Court upheld this sentence in 1990.

June 2, 2016

New Jersey Supreme Court Declines to Find that the Constitution Requires Jury Trials in Third-Offense DWI Cases

by Evan M. Levow

The Sixth Amendment to the U.S. Constitution guarantees a trial by jury in criminal cases, but courts have never applied this guarantee to all prosecutions. A defendant charged with a “petty” offense is not entitled to a jury trial, according to a long line of court decisions at both the state and federal levels. New Jersey courts have long held that jury trials are not required in driving while intoxicated (DWI) cases. A DWI defendant sought to revisit this issue in 2016, arguing that amendments to New Jersey’s DWI statute had made third-offense DWI a “serious” offense, rather than a petty one. The New Jersey Supreme Court, ruling in State v. Denelsbeck, rejected this argument, but it warned that the statute’s current penalties were the maximum possible for a petty offense.

Even though the Sixth Amendment, as written, does not appear to exclude any criminal proceedings from its guarantee of a jury trial, court rulings going back to the 19th century and earlier have held that it does not apply to petty offenses. The term “petty offense” has never had a distinct definition. In a 1937 ruling, District of Columbia v. Clawans, the U.S. Supreme Court held that a petty offense may be identified, in part, by the “severity of the punishment” associated with the offense. The court held in Baldwin v. New York (1970) that an offense with a potential penalty of more than six months’ imprisonment cannot “be deemed ‘petty’ for purposes of the right to trial by jury.”

A 1989 U.S. Supreme Court decision, Blanton v. N. Las Vegas, found that a jury trial was not required under Nevada’s DWI statute, in part because the maximum term of imprisonment was six months. The court held that the maximum term of imprisonment is the most important factor in determining whether an offense is “petty.” It allowed for the possibility, however, that additional penalties attached to a maximum jail sentence of six months or less could turn a “petty” offense into a “serious” one. This was the defendant’s central claim in Denelsbeck.

May 25, 2016

U.S. Supreme Court to Rule on Constitutionality of Criminal Refusal Statutes

by Evan M. Levow

The Fourth Amendment to the U.S. Constitution prohibits “unreasonable searches and seizures” by police, requiring them first to obtain a warrant from a judge. The U.S. Supreme Court is currently considering a Fourth Amendment challenge to state laws regarding “implied consent,” by which anyone operating a motor vehicle on that state’s public roads is considered to have consented to breath testing in investigations of suspected driving while intoxicated (DWI). Unlike New Jersey’s implied consent statute, the statutes at issue, from Minnesota and North Dakota, impose criminal penalties, including jail time, for refusing to submit to breath testing. The court’s eventual decision in Birchfield v. North Dakota is still likely to have an impact on New Jersey DWI law.

Evan Levow, President of the DUI Defense Lawyers Association (DUIDLA), was part of the amicus team from DUIDLA that submitted a brief to the U.S. Supreme Court in this case.

New Jersey law defines refusal as a traffic offense, which is generally not subject to as great a penalty as a criminal offense. A New Jersey refusal conviction results in a license suspension and a fine, but no jail time. For a first conviction, the period of license suspension is seven months to one year, and the fine is $300 to $500. This increases to two years’ suspension and a $500 to $1,000 fine for a second offense, and 10 years and $1,000 for a third or subsequent conviction. Penalties are further increased if an offense occurred in the vicinity of a school.

The North Dakota statute being challenged in Birchfield includes refusal in its definition of DWI, making it a misdemeanor or felony offense to refuse “a chemical test, or tests, of the individual’s blood, breath, or urine.” New Jersey’s law, it is worth noting, only requires breath testing. The penalty for a first offense does not appear to include jail time, but a second offense carries a mandatory minimum of 10 days in jail. A felony offense includes “at least one year and one day’s imprisonment.”

May 16, 2016

“Protective Sweep” Exception Allowed Police to Search New Jersey DWI Suspect’s Car, According to Court

by Evan M. Levow

The Fourth Amendment to the U.S. Constitution prohibits most warrantless searches by police, requiring them first to obtain a warrant from a judge or magistrate. Various exceptions to this rule apply during traffic stops, when police can act on anything they see, hear, or smell that gives them a reasonable suspicion of illegal activity. This could result in a traffic stop for suspected driving while intoxicated (DWI) leading to more serious charges, or a stop for a lesser traffic violation leading to a suspicion of DWI. A defendant in a New Jersey DWI case, State v. Mercado, challenged the search of his vehicle, which police claimed was justified under the “protective sweep” exception to the Fourth Amendment’s warrant requirement.

The protective sweep exception is largely based on another Fourth Amendment exception known as the plain-view doctrine, which holds that police do not violate a person’s Fourth Amendment rights if they investigate something that they can easily see from a reasonable vantage point. If an officer stops a car because of something other than DWI, for example, the officer may be able to investigate possible DWI if an open alcohol container is visible inside the car. This also applies to something an officer can smell, such as the odor of alcohol or marijuana.

A 1983 U.S. Supreme Court decision, Michigan v. Long, addressed the plain-view doctrine in a traffic stop for suspected DWI. The officers searched the defendant’s vehicle because they “had reason to believe that the vehicle contained weapons potentially dangerous to the officers.” Instead, they found marijuana. The Supreme Court identified the protective sweep exception more specifically in 1990 in Maryland v. Buie. It held that an officer may search the immediate area when they have a specific reason to believe that another person is present who could pose a threat to themselves or others.

May 10, 2016

DWI Convictions from Outside New Jersey May Count Toward Priors Leading to Criminal Charge for Driving with a Suspended License

by Evan M. Levow

Driving while intoxicated (DWI) and related offenses, including driving while license suspended (DWLS), are considered traffic offense under New Jersey law, rather than criminal offenses. Under certain circumstances, however, the state can charge DWLS as a criminal offense with a much greater penalty. This might occur when a driver has multiple prior DWI or DWLS convictions at the time of the alleged DWLS offense. A defendant recently argued to the New Jersey Superior Court, Appellate Division that a criminal DWLS charge should not apply to him because only one prior DWI conviction was from New Jersey, and the statute therefore does not allow courts to consider out-of-state convictions. The Appellate Division rejected this argument in late April 2016 in State v. Luzhak, meaning that out-of-state convictions count toward criminal DWLS.

A conviction for DWI or DWLS as a traffic offense may result in jail time and fines, in addition to a driver’s license suspension, but the maximum penalties are generally lower than those for many criminal offenses. Absent any aggravating factors, such as involvement in an accident that causes a bodily injury to someone, the maximum penalty for a third or subsequent simple DWLS conviction is a $1,000 fine and up to 10 days in county jail. A conviction for criminal DWLS, however, results in a mandatory minimum 180-day jail sentence, the same sentence imposed for a third or subsequent DWI conviction.

April 28, 2016

DWI Conviction History Brings Parent to the Attention of New Jersey Child Protection Agency

by Evan M. Levow

A driving while intoxicated (DWI) conviction comes with a mandatory period of license suspension, as well as the possibility of a fine and jail time. Subsequent convictions bring greater penalties. The offense of driving while license suspended (DWLS) also results in penalties, and it is considered a criminal offense in certain circumstances. Beyond New Jersey’s traffic and criminal statutes, DWI and DWLS may have consequences in other areas as well. In one recent case, several prior DWI convictions, and the resulting license suspension, brought two parents to the attention of state child protection workers. The New Jersey Appellate Division addressed this in its decision in New Jersey Div. of of Child Prot. and Permanency v. P.A.

The penalty for a first DWI conviction depends on the defendant’s blood alcohol concentration (BAC). If the BAC was 0.08 percent or greater, but less than 0.10 percent, New Jersey law imposes a penalty that may include a three-month license suspension, a fine of $250 to $400, 12 to 48 hours of programs at the Intoxicated Driver Resource Center, and up to 30 days in jail. If the defendant’s BAC was above 0.10 percent for the first conviction, the fine is $300 to $500, and the period of license suspension is seven months to one year. By the third or subsequent offense, the jail term is at least 180 days, and the period of license suspension is 10 years.

A first-offense DWLS carries a fine of $500. If the reason for the underlying license suspension was a DWI conviction, state law also requires the revocation of the defendant’s vehicle registration. Operating a vehicle without a valid registration can result in impoundment of the vehicle. For a second DWLS conviction, the fine increases to $750, and the defendant is subject to a one-to-five-day jail sentence. A third offense leads to a $1,000 fine and a 10-day jail sentence. Criminal DWLS occurs in certain situations involving prior DWI and DWLS convictions, and it carries a mandatory minimum sentence of 180 days’ imprisonment.

April 24, 2016

New Jersey DWI Defendant Challenges Officer’s Justification for Traffic Stop

by Evan M. Levow

The Fourth Amendment’s prohibition on unreasonable searches and seizures means that police officers cannot stop a person while driving without reasonable suspicion of an offense, and they cannot search or arrest someone without probable cause. A person charged with driving while intoxicated (DWI) and other offenses also has the right to confront their accuser, usually the arresting officer, under the Sixth Amendment’s Confrontation Clause. A DWI defendant recently appealed the denial of her motion to suppress in State v. Ciernak, challenging the sufficiency of the evidence leading to her traffic stop. She further argued that the officer lacked justification to stop her under the “community caretaking function,” an exception to the Fourth Amendment’s search-and-seizure provisions.

Court decisions at the state and federal levels have held that field sobriety tests and breath tests in DWI cases require probable cause, such as if an officer detects an odor of alcohol or other indicators of intoxication, if they observe the vehicle driving erratically, or if the driver admits to consuming alcohol. This standard is lessened, however, under the “community caretaking function,” which holds that police are permitted to stop vehicles in the absence of suspicion of any specific traffic or criminal offense, if they reasonably believe there is a danger to public safety.

The U.S. Supreme Court articulated the elements of the community caretaking function in 1973 in Cady v. Dombrowski, which involved the search of a vehicle involved in a traffic accident. The search yielded illegal firearms, and the court upheld the constitutionality of the search. The New Jersey Appellate Division has affirmed the community caretaking function in situations like driving slowly on the shoulder of a highway with the left turn signal activated for approximately one-tenth of a mile (State v. Goetaski, 1986), and remaining stopped at a green traffic light for 23 seconds (State v. Hancock, 2014). The New Jersey Supreme Court, however, held that the community caretaking function does not justify entering a person’s home without consent to conduct a welfare check without “an objectively reasonable basis to believe that there is an emergency” (State v. Vargas, 2013).

April 19, 2016

Consequences of DWI Conviction in New Jersey Extend Beyond License Suspension, Could Include Loss of Employment Benefits

by Evan M. Levow

A DWI conviction in New Jersey has numerous repercussions, starting with a three- to seven-month driver’s license suspension for a first offense. Courts may also impose a jail sentence for DWI and order a defendant to complete various services. These penalties are prescribed by the New Jersey Motor Vehicles and Traffic Regulations Code, but other areas of New Jersey law may also impose consequences for a DWI conviction. Defending a DWI case requires understanding all the ways in which the case could affect your life. The New Jersey Appellate Division reviewed the consequences of a DWI conviction for public pension benefits earlier this year in Tavaglione v. Bd. of Trustees, Police and Firemen’s Ret. Sys.

Most public employees in New Jersey at the state, county, and city levels are eligible to participate in pension funds established under state law. A pension is a type of retirement account. An employee makes contributions to the pension account from their wages. The employer establishes a trust to manage these contributions for the employees’ benefit. Upon an employee’s retirement, they receive periodic benefit payments.

Laws like the federal Employee Retirement Income Security Act (ERISA) and the New Jersey Public Employees’ Retirement-Social Security Integration Act establish guidelines that employers must follow in the management of pensions and other retirement funds. New Jersey, along with other states, also sets guidelines that public employees must follow in order to receive benefits. New Jersey law states, first and foremost, that pension benefits are dependent upon “the rendering of honorable service by a public officer or employee.”