New Jersey DWI Attorney Blog

April 4, 2016

Alcotest Documentation Was Sufficient in DWI Case, New Jersey Appellate Court Rules

In any court proceeding in which the state seeks to impose penalties on a person for an alleged violation of the law, the defendant has the right to obtain evidence used by the state in the case. The process of obtaining evidence from opposing parties is known as “discovery” in both civil and criminal proceedings. Under New Jersey law, driving while intoxicated (DWI) is considered a traffic offense rather than a criminal offense, but defendants are still entitled to discovery before a case goes to trial. New Jersey courts have held, however, that a defendant’s right to discovery in a DWI case is narrower than in a criminal case. The court reviewed these rights, and the state’s obligations, in February 2016 in State v. Conroy, when it ruled on a defendant’s challenge to the state’s evidence.

New Jersey law enforcement uses a device known as the Alcotest to measure blood alcohol concentration (BAC) in breath samples obtained from DWI suspects. State law requires any law enforcement officer operating an Alcotest device to be certified in accordance with standards established by the New Jersey Attorney General. These standards, which are codified in Title 13, Chapter 51 of the New Jersey Administrative Code (NJAC), require a Breath Test Operator (BTO) to have an “operator’s certificate” that is valid at the time they administer a test to a suspect. The NJAC states that a “replica certificate” with the “facsimile signature of the Superintendent [of the State Police] and the Attorney General” is valid to establish a BTO’s credentials.

The New Jersey Supreme Court’s 2008 decision in State v. Chun established that the state must produce certain documents in any case that relies on breath testing evidence obtained with an Alcotest device. Subsequent decisions from the Appellate Division have identified types of evidence that do not fall under the requirements of Chun. Two decisions, State v. Maricic from 2010 and State v. Carrero from 2012, held that discovery in DWI cases is more limited than in criminal proceedings.

March 13, 2016

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

by Evan M. Levow

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.

March 5, 2016

Defendant Challenges Legal Sufficiency of “Standard Statement” Read During New Jersey DWI Arrests

by Evan M. Levow

New Jersey prosecutors can use evidence of a defendant’s blood alcohol content (BAC) to establish guilt in a case of alleged driving while intoxicated (DWI). A BAC of 0.08 percent or higher creates a presumption of impairment. New Jersey law effectively requires drivers, when a police officer suspects DWI, to submit a breath sample for BAC analysis, on penalty of a fine or license suspension. State law also requires officers to read a “Standard Statement” to a driver prior to administering a breath test. A defendant recently appealed her conviction for a refusal to submit to breath testing by challenging the legal sufficiency of the Standard Statement. While the Appellate Division ruled against her, its opinion in State v. Quintero offers a useful overview of New Jersey refusal law.

Simply by operating a vehicle on public roads within this state, drivers in New Jersey are considered to have given “implied consent” to breath testing. A refusal to submit to breath testing after an arrest on suspicion of DWI is considered a traffic offense, separate from the offense of DWI. A first-time refusal offender could face a license suspension of seven months to one year, and a fine of $300 to $500. This increases to a two-year suspension and a $500-$1,000 fine for a second offense, and a 10-year suspension and a $1,000 fine for a third.

The “implied consent” law requires people to provide evidence that could be used against them by prosecutors in municipal court. Despite this, courts have generally held that it does not violate the Fifth Amendment’s privilege against self-incrimination. The self-incrimination privilege protects a person from being compelled to testify against themselves, and courts have held that submitting a sample of breath is not “testimony.”

February 26, 2016

New Jersey Court Reviews State Law Regarding Use of Drug Recognition Evaluators in DWI Cases

by Evan M. Levow

The law of driving while intoxicated (DWI) in New Jersey gives the state multiple ways to establish that a defendant was impaired by alcohol or another drug. Blood alcohol content (BAC) is not required for prosecutors to obtain a conviction. Prosecutors can also offer testimony from an arresting officer describing a defendant’s performance on field sobriety tests, their behavior and demeanor, and other observations. Some police departments make use of drug recognition evaluators (DREs), officers with specialized training in identifying the effects of drugs other than alcohol.

The New Jersey Appellate Division considered a defendant’s challenge to DRE testimony in late 2015 in an unpublished decision, State v. Vazquez. The court misinterpreted New Jersey case law and found that New Jersey courts have recognized them as qualified experts. That is incorrect. The court relied on a 2006 New Jersey Supreme Court decision, State v. Bealor, which held that DRE testimony was admissible in a marijuana case, because the court thought that marijuana intoxication is so easy to spot, and accepted the DRE’s testimony that Mr. Bealor was under the influence of marijuana. Bealor was wrongly decided, and it is now being used to support a proposition that is incorrect.

Prosecutors can use the New Jersey DWI statute to charge someone with driving under the influence of drugs (DUID), which requires proof that they were driving “while under the influence of…[a] narcotic, hallucinogenic or habit-producing drug.” Breath, blood, and urine tests are at least somewhat effective at ascertaining the amount of alcohol in a person’s system, and the way the human body typically metabolizes alcohol allows reasonable estimates, based on a person’s BAC, of how recently they were drinking. Other drugs are not as easily testable, which means that prosecutors must rely on other types of evidence to prove impairment. This is where some departments have started using DREs.

A DRE receives training in how to recognize the effects of various drugs in order to determine whether a person is legally impaired, usually after an arrest for suspected DWI or DUID. The International Association of Chiefs of Police oversees training and certification. DREs use a 12-step process that begins with a review of BAC results, if any, and an interview of the arresting officer. The DRE then conducts an examination of the arrestee, which includes checking their pulse, examining their eye movements (similar to a field sobriety test), conducting tests of physical coordination, taking their blood pressure, and checking their pulse again. It also includes a “muscle tone” examination, based on the theory that “certain categories of drugs may cause the muscles to become rigid,” while others may make them “very loose and flaccid.” This 12 step process has not been validated or held to be scientifically reliable in New Jersey. Because the Vazquez opinion is unpublished, it carries no precidential weight.

February 21, 2016

New Jersey Supreme Court Reverses DWI Conviction Due to Insufficient Alcotest Documentation

by Evan M. Levow

When prosecutors in New Jersey pursue a case of alleged driving while intoxicated (DWI), they frequently rely on evidence of a defendant’s blood alcohol content (BAC) obtained through breath or blood testing. Anyone with a BAC of 0.08 percent or above is presumed to be impaired for the purpose of a DWI case. Police in this state typically use a device known as an Alcotest to collect and test breath samples from DWI suspects. We were counsel in a case that went before the New Jersey Supreme Court in 2008, State v. Chun, which established multiple guidelines that the state must follow in order to use BAC evidence obtained with an Alcotest device. The state Supreme Court recently reversed a DWI conviction in another case, State v. Kuropchak, based on improper documentation regarding the Alcotest used by police.

Police in New Jersey currently use the Draeger Alcotest® 7110 MKIII-C. The DWI suspect blows into a tube, and the device analyzes the breath sample to estimate the person’s BAC. It bases its estimate on a “2,100 to 1 blood/breath alcohol ratio,” meaning that its programming assumes that 2,100 parts of breath contain the same amount of alcohol as one part of blood. This assumption was one of the many features of the Alcotest that were challenged in Chun.

The New Jersey Supreme Court ruled in Chun that the Alcotest is generally acceptable by scientific standards, but it imposed a variety of conditions on police using the device, and on prosecutors seeking to admit BAC evidence obtained with the device. The state must produce two documents relating to the calibration and maintenance of the device. It must produce a Certificate of Analysis showing that the device has the proper “simulator solution,” a solution typically designed to return a 0.10 percent result to use as a comparison to the breath sample. The state must also produce the most recent report documenting maintenance of the device, known as the “Calibrating Unit New Standard Solution Report.”

February 15, 2016

New Jersey Appellate Court Rules on Question of Police Duties Under State v. Chun

by Evan M. Levow

Law enforcement agencies in New Jersey use a device known as the Alcotest to determine the blood alcohol content (BAC) of individuals suspected of driving while intoxicated (DWI). A 2008 decision by the New Jersey Supreme Court in which we represented several parties, State v. Chun, determined that the Alcotest is scientifically reliable, provided that the state meets certain conditions. The decision also established procedures that law enforcement must follow when using the device. The New Jersey Appellate Division heard a case last year, State v. Sorenson, that asked it to decide whether a failure by police to follow certain parts of Chun required suppression of evidence obtained with an Alcotest device.

BAC evidence is not required in a DWI case. A court can convict a defendant of DWI based solely on the testimony of officers who observed the defendant’s appearance and behavior. This is known as an “observational violation.” The New Jersey DWI statute also provides, however, that any person with a BAC of 0.08 percent or higher is presumed to be under the influence of alcohol. A DWI case based on BAC results is known as a “per se violation,” since it rests on the presumption of impairment. For a first DWI offense, the penalties are the same for a per se violation when the defendant’s BAC is 0.08 percent or higher, but lower than 0.10 percent, as they are for an observational offense. The penalties are greater, however, for a per se violation with a BAC of 0.10 percent or higher.

After an individual submits a breath sample to an Alcotest machine, the device runs various tests and prints out a Alcohol Influence Report (AIR), stating the BAC detected in the sample. The AIR frequently serves as the state’s evidence of impairment. Under Chun, police are required to provide a copy of the AIR to a defendant or a defendant’s counsel.

February 9, 2016

Defendant in New Jersey DWI Case Raises “Double Jeopardy” Claim During Appeal

by Evan M. Levow

The Fifth Amendment to the U.S. Constitution states that a person may not, “for the same offense…be twice put in jeopardy of life or limb.” This is known as the “double jeopardy” clause of the Constitution. Courts have interpreted it to mean—in a very general sense—that the government cannot charge a person with a criminal offense if they have been acquitted or convicted of an offense based on the same act or incident. The New Jersey Appellate Division, in State v. Sorenson, recently considered a DWI defendant’s claim that double jeopardy barred the prosecution’s appeal. A common misconception about double jeopardy is that it prevents the state from appealing any ruling in a criminal case, since it often does not apply to non-final judgments in trial courts.

The double jeopardy clause states that prosecutors cannot charge someone for the same offense more than once. Each phrase in the clause, particularly the phrase “twice put in jeopardy,” has been subject to extensive judicial scrutiny. Double jeopardy unquestionably applies once a person has been acquitted or convicted of a particular offense. For example, if a person is charged with DWI and acquitted (or convicted) by a municipal court, the state cannot charge that person with DWI again for the same incident. Prosecutors also could not appeal the acquittal itself.

When a case does not result in a final judgment of conviction or acquittal, however, double jeopardy becomes much more complicated. If a court dismisses a case based on a defendant’s pre-trial motion, the prosecution might be able to appeal that order. If an appellate court rules in the state’s favor, the case would proceed as though the dismissal had not occurred.

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.