New Jersey Turnpike widening Robbinsville 2013A conviction for driving while intoxicated (DWI) typically results in a fine, a period of driver’s license suspension, and possibly jail time. Many states’ DWI laws also require the installation of an ignition interlock device (IID) as a condition of driver’s license reinstatement. A driver with an IID must submit a breath sample to the device, which will prevent the engine from starting if the sample shows blood alcohol content (BAC) above a certain level. Courts have the option of ordering an IID in some New Jersey DWI cases, but it is mandatory in other cases. Lawsuits filed around the country have challenged the legality and constitutionality of IID requirements, with varying degrees of success. While none of these lawsuits and court decisions directly affect New Jersey DWI cases, they might offer a guide to possible challenges to this state’s requirements.

Municipal court judges in New Jersey are required by law to order the installation of an IID in some DWI cases, and in all cases of refusal to submit to breath testing. An IID order is not mandatory for first-time DWI offenders whose BAC was less than 0.15 percent. If a judge decides to order IID installation under those circumstances, the order can be for a minimum of six months after the reinstatement of the defendant’s license, to a maximum of one year. The time period is the same for mandatory IID orders in refusal cases and first-time DWI cases with BAC of at least 0.15 percent. Second or subsequent convictions for DWI or refusal include mandatory IID installation for one to three years. Failure to install an IID when ordered to do so can result in further license suspension and other penalties.

The federal government encourages states to enact laws requiring the use of IIDs after DWI convictions. A law passed by Congress in 1998, the Transportation Equity Act for the 21st Century, reduces the amount of federal highway funds available to states that do not enact “repeat intoxicated driver laws.” This term is defined to include minimum license suspension periods and mandatory IID installation. The U.S. Supreme Court held that Congress may, within reasonable limits, attach conditions to federal funding provided to states in South Dakota v. Dole. State-level IID requirements have also faced various legal challenges.
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DiversionCourts in New Jersey encourage both prosecutors and defendants to explore alternatives to taking a case to trial. Most prosecutions in New Jersey do not go to trial, ending instead in a plea agreement, diversion, or dismissal. Defendants charged with criminal offenses may qualify for pretrial intervention (PTI), which allows them to “avoid ordinary prosecution by receiving early rehabilitative services or supervision.” Driving while intoxicated (DWI) is not a criminal offense under New Jersey law, meaning that PTI is not available for defendants charged with DWI in municipal court. The related offense of driving while license suspended (DWLS), however, can lead to criminal charges in certain situations. Information about PTI may therefore still be useful during a DWI case. A recent decision by the New Jersey Appellate Division, State v. Torres, reviews the criteria for PTI.

New Jersey law establishes PTI as a means of focusing on the “least burdensome form of prosecution possible” for qualifying defendants. Eligibility is generally limited to defendants with no prior convictions in New Jersey, nor in any other federal or state court. The statute does not define additional eligibility requirements, other than a presumption against eligibility for defendants charged with public corruption or domestic violence. Prosecutors may recommend a defendant for PTI based on various factors, including the severity of the alleged offense, the defendant’s age, and circumstances that suggest that ordinary prosecution would not be effective at deterring future illegal activity or serving justice.

The PTI statute can be found in Title 2C of the New Jersey Revised Statutes, also known as the New Jersey Code of Criminal Justice. The DWI statute, on the other hand, is found in Title 39, Motor Vehicles and Traffic Regulation. This title deals with motor vehicle offenses like speeding, reckless driving, and DWLS, in addition to DWI. Proceedings involving motor vehicle offenses are similar to criminal proceedings in most ways. Prosecutors are still required to prove guilt beyond a reasonable doubt, for example, but defendants charged with DWI are not entitled to a trial by jury. In certain situations, DWLS is covered by a criminal statute, such as when a person allegedly drives during a period of license suspension that resulted from a DWI conviction.

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test tubePost-conviction relief (PCR) allows a defendant to challenge a conviction even after the time period to file an appeal has passed, provided they can assert certain grounds for doing so. Under New Jersey law, a PCR petition must allege a significant violation of a defendant’s legal or constitutional rights, rather than just an error by a lower court. If a defendant can establish a violation of their rights, the court may order a new trial, modify the sentence, or, if the defendant is incarcerated, order their release. A recent decision by the New Jersey Appellate Division, State v. Cooper, considered a claim for post-conviction review in a driving while intoxicated (DWI) case, based, in part, on a claim of insufficient evidence. Specifically, the defendant’s blood alcohol content (BAC) test results were below the legal limit, and the defendant argued that the remaining evidence did not support a finding of guilt.

New Jersey municipal courts have original jurisdiction over DWI cases, so that is where defendants must file petitions for PCR. Rule 7:10-2 of the New Jersey Rules of Court governs PCR procedures. It identifies several possible grounds for PCR, including any ground that could be raised to challenge a conviction “by habeas corpus or any other common law or statutory remedy.” This catch-all category covers a wide area of law. In Cooper, the defendant challenged the sufficiency of the evidence but did so by alleging that his counsel at trial was ineffective.

Prosecutors can offer evidence that a defendant operated a vehicle while under the influence of drugs or alcohol in several ways. State law defines DWI to include driving with a BAC of 0.08 percent or higher, but the state can also use testimony by police officers who witnessed the defendant’s behavior during and after their arrest, and who have training in identifying signs of alcohol intoxication. Some New Jersey police departments also employ officers trained in recognizing the physical indicators of drug use. The reliability of such testimony, especially with regard to drugs, is often contested at trial.

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Ice waterNew Jersey law allows prosecutors to offer evidence of driving while intoxicated (DWI) in two ways. One way relies on evidence like testimony by police officers about outward signs of intoxication, including appearance and behavior. The second method involves evidence that a defendant’s blood alcohol content (BAC) was above a certain level. This is often known as “per se” DWI because the BAC evidence creates a presumption that the defendant was impaired by alcohol. A DWI defense strategy should take both methods of proving DWI into consideration. Defending against a per se DWI charge in New Jersey often involves challenging police equipment more than police witnesses. The Appellate Division recently considered an appeal of a per se DWI conviction in State v. Page.

The DWI statute defines the offense as driving either “while under the the influence” of alcohol or drugs or with a BAC of at least 0.08 percent. The latter definition constitutes per se DWI. It does not necessarily require any evidence other than the defendant’s actual or imminent operation of a motor vehicle and the defendant’s BAC at or near that time. It is possible to obtain an acquittal or dismissal in a DWI case even with evidence of a BAC over 0.08 percent. It is also possible, however, for the state to obtain a conviction without BAC evidence or with a BAC of less than 0.08 percent.

New Jersey courts have established a variety of procedures and protocols that police must follow in an effort to ensure the accuracy of BAC test results. Police in this state commonly use a device known as the Alcotest to measure BAC. The defendant must provide a breath sample by blowing into a tube. The device then measures the alcohol content of the sample. The Alcotest requires regular maintenance and careful calibration, and it can produce inaccurate results without either of these. A 2008 decision by the New Jersey Supreme Court, State v. Chun, establishes maintenance and record-keeping protocols that police must follow for Alcotest results to be admissible in court. It also requires police to observe a DWI suspect for 20 minutes before administering the test.

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Blood TubesUnder New Jersey’s driving while intoxicated (DWI) statute, a defendant is presumed to be legally impaired by alcohol if their blood alcohol content (BAC) is 0.08 percent or higher. Police in New Jersey commonly use a device known as the Alcotest to collect breath samples, which the device analyzes to measure BAC. Police may also obtain blood or urine samples to test, but state law only requires drivers to submit breath samples in DWI investigations. Obtaining a sample of blood usually requires a warrant or the person’s consent. Determining whether a defendant gave proper consent to a warrantless blood draw is a key question courts must consider. The New Jersey Appellate Division ruled on this issue earlier this year in State v. Milkosky.

The Fourth Amendment to the U.S. Constitution requires police to obtain a warrant before searching a person or their property. Drawing blood for use in a police investigation counts as a “search.” Courts have identified multiple exceptions to the Fourth Amendment’s warrant requirement. The “exigent circumstances” exception applies when police and prosecutors can demonstrate that taking the time to get a warrant from a judge would result in greater harm than the warrantless search, such as the destruction of evidence, the escape of a suspect, or harm to an officer or others.

Police have, at times, claimed exigent circumstances to justify collecting blood samples from a DWI suspect without a warrant or the suspect’s consent. Alcohol breaks down in the human body due to the process of metabolism. In 2013, the U.S. Supreme Court rejected the claim that the metabolism of alcohol in the body, by itself, satisfies the exigent circumstances exception. The decision, Missouri v. McNeely, established that a warrant or the suspect’s consent is required for most blood draws.

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test tubesChemical testing for alcohol or drugs is a key component of most prosecutions for driving while intoxicated (DWI) in New Jersey. Breath testing is mandatory under state law, but the Alcotest and similar devices can only test for the presence of alcohol. If police suspect driving under the influence of drugs, New Jersey law provides no immediate means to obtain evidence. Drawing blood without a person’s consent requires a warrant in most circumstances. The New Jersey Appellate Division took up these issues in an appeal that challenged the admissibility of blood test results. Its ruling in State v. Nasta deals specifically with criminal charges, rather than DWI, but it is likely to affect New Jersey DWI cases in the future.

Since it involves an invasive procedure, courts have held that drawing blood as part of an investigation for DWI or another offense is a “search” within the meaning of the Fourth Amendment to the U.S. Constitution. This means that police must obtain a warrant from a judge by demonstrating that they have probable cause to believe that the search will reveal evidence of wrongdoing.

Police are not required to obtain a warrant in certain situations identified by courts as exceptions to the Fourth Amendment. One exception involves “exigent circumstances,” in which taking the time to obtain a warrant would risk greater harm than a warrantless search. The impending destruction or loss of evidence could constitute an exigent circumstance. The U.S. Supreme Court, however, ruled in Missouri v. McNeely that the natural breakdown of alcohol by the human body is not “exigent” enough to allow a warrantless blood draw. The court has not said that a warrantless blood draw is never justified by exigent circumstances, but it has not identified what those circumstances might be.

blood cellsEvidence of a driver’s blood alcohol content (BAC) is a critical tool for prosecutors in driving while intoxicated (DWI) cases. Under the New Jersey DWI statute, a driver with a BAC of at least 0.08 percent is presumed to be impaired. BAC evidence can come from tests on a sample of a driver’s breath or blood. Because of the importance of BAC evidence in DWI cases, New Jersey makes it a separate traffic offense to refuse to submit a breath sample, punishable with a fine and license suspension. Some states make refusal a criminal offense, meaning that it could result in jail time, and require submission to both breath and blood testing. The U.S. Supreme Court considered a Fourth Amendment challenge to criminal refusal statutes last year. Although New Jersey’s refusal statute does not impose criminal penalties or require blood testing, the court’s ruling in Birchfield v. North Dakota is important for DWI defendants all over the country.

Anyone who drives on public roads in New Jersey has, according to state law, given their implied consent to breath testing in a DWI investigation. This allows the state to charge anyone who refuses to submit a breath sample with a traffic offense. New Jersey law does not require drivers to submit to blood testing, however, unless police obtain a warrant. The defendants in Birchfield challenged statutes in Minnesota and North Dakota that impose criminal penalties for refusal. The North Dakota law included both breath and blood samples.

The Fourth Amendment generally prohibits “searches and seizures” without a warrant supported by probable cause to believe that a search will yield evidence or contraband. Numerous courts have held that breath and blood testing are “searches” within the meaning of the Fourth Amendment. Courts have also recognized exceptions to the warrant requirement, however. The “search incident to arrest” exception, for example, allows police to search a person during an arrest. Police may also claim that “exigent circumstances,” such as the imminent destruction of evidence, made waiting to obtain a warrant impractical.

the lawThe legal treatment of driving while intoxicated (DWI) varies from one state to another, with some states categorizing it as a criminal offense and others, including New Jersey, calling it a traffic or motor vehicle offense. Several recent media reports have questioned whether New Jersey’s DWI laws are “tough enough,” pointing to the risks allegedly posed by repeat offenders. The New Jersey Legislature has revised and amended the DWI statute many times, and several bills are currently pending that would increase some penalties and reduce others. A key question to consider when discussing the “toughness” of DWI laws is whether the purpose of these laws is to punish people who violate the law, prevent people from violating the law in the future, or some combination of the two. This particular dispute is at least as old as the legal system itself.

Every state defines DWI, in part, as driving with blood alcohol content (BAC) of 0.08 percent or higher. The differences between treating DWI as a criminal or traffic offense include the procedures courts must follow at trial, and the possible punishments resulting from a conviction. A DWI conviction in New Jersey, by itself, results in license suspension and a fine, as well as the possibility of jail time. A first-time offender with BAC of at least 0.15 percent must also install an ignition interlock device (IID) in their vehicle, both during and after the period of suspension. Second, third, and subsequent offenses also carry greater possible penalties, up to a maximum fine of $1,000, license suspension of ten years, and 180 days in jail.

In states where DWI is considered a criminal offense, penalties may be greater than in New Jersey, in terms of fine amount and length of jail sentence. The specific code section dealing with DWI in New Jersey, however, is not the only one involved in DWI enforcement. The New Jersey Motor Vehicle Code includes provisions penalizing drivers for refusing to submit to breath testing and for driving with a suspended license, as well as for circumstances like DWI with a minor passenger in the vehicle.
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Keyless IgnitionNew Jersey law imposes a wide variety of penalties for the traffic offense of driving while intoxicated (DWI). Some of these penalties, like fines and jail time, are primarily punitive. Other penalties have the additional goal of public safety. A license suspension after a DWI certainly counts as punishment, but proponents of license suspensions often cite the public safety benefit of keeping DWI offenders off the roads. A similar justification accompanies the New Jersey law requiring the use of an ignition interlock device (IID), which requires the driver to submit a breath sample and prevents a vehicle from starting if the sample shows a blood alcohol content (BAC) above a certain amount. The Centers for Disease Control and Prevention (CDC), a federal agency, recommends the expanded use of IIDs, based largely on its assessment of the benefit to public safety. A bill currently pending in the New Jersey Legislature would require the installation of an IID for all DWI convictions.

Under current New Jersey law, the penalty for a first-time DWI offense does not include mandatory IID installation if the defendant’s BAC was less than 0.15 percent. Municipal court judges still have discretionary authority to order IID use in such cases during the period of the driver’s license suspension, and for six to 12 months after the reinstatement of the license. For a first offense with a BAC of 0.15 percent or higher, IID installation is mandatory for a similar period of time. After a second or subsequent DWI offense, IID installation is mandatory during the suspension period and for one to three years afterwards.

A DWI defendant cannot drive any vehicle other than the one with the IID installed while they are subject to a court order requiring an IID. Failing to install an IID as ordered, or operating a vehicle equipped with an IID by having someone else blow into the device, can result in an additional one-year license suspension. Other IID-related offenses include blowing into someone else’s IID to allow them to start the vehicle, tampering with an IID, and knowingly lending or leasing a vehicle without an IID to someone subject to a court order requiring an IID. These are all disorderly person offenses, which can carry penalties of up to six months in jail and a maximum fine of $1,000.

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Roman dieNew Jersey law imposes increasingly harsh penalties for subsequent convictions of driving while intoxicated (DWI) and refusal to submit to breath testing. Penalties for both offenses may include fines, a driver’s license suspension, and the mandatory use of an ignition interlock device. A conviction for DWI may also involve jail time. State law includes “step-down” provisions, however, that lessen the severity of a sentence if a sufficient amount of time has passed since the most recent prior conviction. The New Jersey Appellate Division recently ruled on an appeal involving a defendant’s refusal conviction, which followed three DWI convictions. The court’s ruling in State v. Clapper considered whether the step-down provisions, which only mention second and third DWI offenses, apply to subsequent refusal offenses.

The New Jersey DWI statute imposes progressively harsher penalties for (1) a first DWI conviction involving a blood alcohol content (BAC) of at least 0.08 percent but less than 0.10 percent, (2) a first offense involving a BAC of 0.10 percent or higher, (3) a second offense, and (4) a third or subsequent offense. The refusal statute imposes increasing penalties for (1) first, (2) second, and (3) third or subsequent offenses. Prior DWI convictions may be used to enhance the sentence for a refusal conviction, according to the Appellate Division’s 2015 ruling in State v. Taylor, but prior refusal convictions may not be used to enhance a DWI conviction.

Under the step-down provisions, if a second DWI offense occurs more than 10 years after the first, the court must impose the sentence for a first offense. Likewise, if a third offense occurs more than 10 years after the second, the court must treat it as a second offense. This applies to both DWI and refusal convictions under the system described in Taylor. Notably, the step-down provisions do not mention subsequent convictions after a third one.

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