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Ignition interlock devices (IIDs) are becoming more and more common in driving while intoxicated (DWI) cases in New Jersey and around the country. For a certain period of time after some DWI convictions, an individual may only operate a vehicle equipped with an IID, which requires the person to submit a breath sample and prevents the ignition key from turning if the person’s blood alcohol content (BAC) is too high. The IID requirement acts as a safeguard against drinking and driving by people with DWI convictions, while still allowing them to drive when necessary. A lawsuit against a city government demonstrates a possibly unexpected consequence of this policy:  claims of negligence against cities and other local governments for failing to ensure that a person ordered to use an IID actually does so. This type of lawsuit adds a civil—as in, non-criminal—element to DWI law.

The installation of an IID is mandatory for certain DWI offenses, or it may be within a court’s discretion to order its use. Before a person may start the vehicle, they must blow into a device that, just like a breathalyzer, measures BAC levels. The maximum allowable BAC is usually less than the “legal limit” of 0.08 percent, since the point of the device is to prevent a person from driving before they near the point of legal impairment.

New Jersey’s IID law expressly acknowledges that some people with DWI convictions will continue to drive anyway. For many first DWI offenses, New Jersey judges have discretion to order the use of an IID for six months to one year after driver’s license restoration. If a first DWI involves BAC of at least 0.15 percent, however, an IID is mandatory, both during the license suspension period and for six months to a year afterwards. The penalties for a second, third, or subsequent DWI offense include mandatory IID installation during the license suspension period and for an additional one- to three-year period. A person commits a new offense if they violate an order to use an IID, and they could also face additional penalties in the underlying DWI case.

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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.”

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In order to prove that a person has committed the offense of driving while intoxicated (DWI), the state must prove impairment by alcohol or another intoxicating substance. Prosecutors can do this in several ways, including blood alcohol content (BAC) based on a blood or breath test. A BAC of 0.08 percent or higher is presumed to be evidence of impairment. It is possible for a court to convict a person of DWI in the absence of BAC evidence, or even with a BAC that is below 0.08 percent, based on other evidence of impairment. Could a person with a BAC above 0.08 percent, on the other hand, overcome the presumption of impairment? A recent case out of New York shows how a rare medical condition led to an unusually high BAC result, although this is not likely to be a common defense.

New Jersey’s DWI statute specifically mentions a BAC of 0.08 percent or above in its definition of the offense, but it also states that a person commits DWI if they drive “while under the influence of intoxicating liquor” or a similar substance. Drivers in New Jersey are subject to the implied consent law regarding breath testing, meaning that they can be penalized for refusing to submit a breath sample. Even without BAC evidence, prosecutors may prove impairment through other means, such as field sobriety tests performed during a traffic stop. An officer can testify about observations like slurred speech or an alcohol odor. If the state has BAC test results above the legal limit, however, prosecutors may not bother with an officer’s testimony as much, which appears to have been a factor in the recent New York case.

According to local news coverage, police in the Buffalo, New York area stopped a 35-year-old schoolteacher one evening in October 2014, based on a 911 caller’s report of a vehicle driving erratically. The officer claimed to have smelled alcohol and stated that the defendant’s speech was slurred, and her eyes appeared “bloodshot” and “glassy.” The defendant reportedly admitted to having three cocktails several hours earlier. Her BAC test results, however, showed 0.33 percent, which is over four times the legal limit and close to the point of medical emergency. Despite this result, her condition did not match that of someone about to go into a coma.

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New Jersey laws regarding driving while intoxicated (DWI) include the act itself and multiple related offenses, including driving while one’s license is suspended (DWLS) and refusal to submit to breath testing. State law imposes harsher penalties for second and subsequent offenses, but it also mitigates these penalties in some situations. Merely having prior convictions therefore does not necessarily mean that a defendant must receive an enhanced penalty. A decision from the New Jersey Appellate Division in September 2015, State v. Jones, involved a defendant with a particularly complicated history of prior convictions. This made determining a proper sentence quite difficult.The Jones case involves all three types of offenses commonly associated with DWI:  DWI itself, DWLS, and refusal. DWI and refusal are both considered traffic offenses under New Jersey law rather than criminal offenses. The penalty for a first-time DWI offense is based, in part, on the defendant’s blood alcohol content (BAC). A second offense may involve a higher fine, a jail term, and the installation of an ignition interlock device, regardless of BAC. For a third or subsequent offense, the potential fine and jail term are even higher, also regardless of BAC. A DWI at any level leads to a mandatory period of a driver’s license suspension. DWLS can become a criminal offense in certain situations, partly based on the number of prior DWI convictions, with a mandatory 180-day jail sentence.

New Jersey courts have established certain requirements for guilty pleas in DWI cases, largely due to the potentially unforeseen consequences of pleading guilty with prior convictions. One very important rule, established by the New Jersey Supreme Court in 1990 in State v. Laurick, states that a prior conviction may not be used to enhance a subsequent jail sentence if the prior conviction violated a defendant’s constitutional rights. The most common way defendants use this rule is when they did not have counsel for a prior guilty plea. Another case from the New Jersey Supreme Court, 1989’s State v. Barboza, established minimal standards for the entry of a guilty plea by an uncounseled defendant.

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After a conviction for driving while intoxicated (DWI), New Jersey law provides defendants with several means of challenging the verdict, or the process leading to that verdict. The appellate process, by which a defendant appeals the municipal court conviction to a higher court, has strict rules regarding grounds for appeal and filing deadlines. Post-conviction relief (PCR) takes place in the same court as the conviction, under the same case number. PCR bears some similarities to habeas corpus, particularly in the sense that it does not have the same time limits as an appeal. Under New Jersey law, a petition for PCR is the proper method for raising certain claims, while other claims can only be raised in an appeal. A recent Appellate Division decision, State v. Grabowski, addresses some of these differences.

The rules governing PCR petitions are found in the New Jersey Rules of Court (NJROCs). Different rules govern PCR petitions in criminal cases and traffic cases, which are typically heard in the Law Division of the Superior Court and in municipal court, respectively. DWI is a traffic offense under New Jersey law, not a criminal offense. The procedures for PCR are similar under both rules. Rule 3:22 of the NJROCs governs PCR in criminal cases, while Rule 7:10-2 governs PCRs in municipal court.

The deadline for filing an appeal in a New Jersey court is typically between 20 and 45 days after the order or judgment. Under Rule 7:10-2, a DWI defendant may file a petition for PCR up to five years after the conviction. If the purpose of the PCR petition is “to correct an illegal sentence,” or if the defendant can show that the failure to file within five years “was due to the defendant’s excusable neglect,” the five-year deadline does not apply. Both Rule 7:10-2 and 3:22 state that PCR “is not a substitute for appeal from a conviction,” and that a defendant cannot file a PCR petition during the time period when they could still file an appeal.

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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.

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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.

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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.

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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.

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The New Jersey Supreme Court issued a controversial ruling in late September 2015, State v. Witt, regarding the circumstances in which police can search a vehicle without a warrant during a traffic stop. After arresting the defendant on suspicion of driving while intoxicated (DWI), the arresting officer searched the vehicle and found a handgun. This resulted in a charge of unlawful possession of a firearm. The court found that the search was lawful, despite the lack of a warrant. This overturns the rule established by the court in 2009 in State v. Pena-Flores, sometimes also cited as State v. Fuller, which required “exigent circumstances” for warrantless vehicle searches. Federal case law allows warrantless vehicle searches, often merely with a showing of probable cause. This is commonly known as the “automobile exception” to the Fourth Amendment’s search warrant requirement. The court stated that its ruling in Witt is bringing New Jersey in line with the federal standard.

The U.S. Supreme Court first identified an “automobile exception” in 1925 in Carroll v. United States, finding that the inherent mobility of a vehicle makes it impractical to require an officer to obtain a warrant before a search—by the time they got the warrant, the vehicle might be halfway to the state line. Courts have expanded the automobile exception in the 90 years since Carroll was decided. Prior to 2009, the general rule in New Jersey was established by the New Jersey Supreme Court’s 1981 decision in State v. Alston. That case held that the automobile exception allowed police to search a vehicle without a warrant both during a lawful traffic stop and after the arrest of the vehicle’s occupants, when there was no longer any risk of the vehicle being moved.

In Pena-Flores, the court noted that it has “never subscribed fully to the federal version of the automobile exception,” and it noted that many of the cases in which it applied the automobile exception actually involved exigent circumstances. A case decided on the same day as Alston, State v. Martin, involved a vehicle whose occupants, suspects in a bank robbery, had fled the scene but could “have returned at any moment to move the car or remove the car’s contents.” Waiting to obtain a warrant before searching the vehicle would have been impractical. The court crafted a three-part rule in Pena-Flores for warrantless vehicle searches:  (1) an unexpected traffic stop, (2) probable cause to suspect that the vehicle contains evidence of a crime or contraband, and (3) exigent circumstances rendering it impractical to wait for a warrant.

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