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New Jersey’s driving while intoxicated (DWI) law imposes substantial penalties for offenses, including driver’s license suspension, fines, and even jail time in some cases. New Jersey also has a law that deals with boating while intoxicated (BWI) and imposes similar penalties. The similarities do not stop there. Just like with DWI, people who operate certain types of watercraft on New Jersey waterways have given implied consent to submit breath samples to police, which they will use to measure blood alcohol content (BAC). Refusal to submit to breath testing for suspected BWI is a separate offense. The penalties are similar to those in New Jersey DWI refusal cases.

A person commits BWI if they operate “a power vessel or a vessel which is 12 feet or greater in length” while intoxicated. A “vessel” is any type of watercraft. A “power vessel” is one that does not rely solely on “sails or…muscular power” for propulsion. A person who operates a motorboat while under the influence, therefore, commits BWI no matter the size of the watercraft. If that same person is operating a canoe, kayak, or sailboat, on the other hand, state law probably would not consider it to be BWI unless the craft was at least twelve feet long. That said, other boating laws and regulations might apply if someone is operating a large sailboat in a reckless manner.

A member of the New Jersey State Police or a local law enforcement officer can instruct a person operating any type of watercraft covered by the BWI statute to submit a breath sample. The officer must have a reasonable suspicion that the person is under the influence of alcohol or drugs. State law establishes procedures that police must follow in order to collect breath samples. The New Jersey Supreme Court’s ruling in State v. Chun requires police to meet additional requirements when using an Alcotest device in BWI cases.
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New Jersey’s driving while intoxicated (DWI) law applies to most motor vehicles, such as cars, trucks, motorcycles, and e-bikes. Riders of non-motorized bicycles are not subject to New Jersey DWI laws. A separate statute addresses operating a watercraft while under the influence of alcohol or drugs. The boating while intoxicated (BWI) statute is similar to the DWI law, but not identical. The fact that the two laws have different penalties has some important effects. Courts can use prior DWI convictions to enhance the penalties for a new DWI offense. The New Jersey Appellate Division has held that past BWI convictions do not count as prior convictions when determining the penalties for a DWI conviction.

The structure of the BWI law is almost identical to the DWI statute. It prohibits operating a “vessel” in two situations:
– While under the influence of drugs or alcohol; or
– With blood alcohol content (BAC) of 0.08 percent or more.
It defines “vessel” as “a boat or watercraft…used or capable of being used as a means of transportation on water.” A “power vessel” is one that has “machinery for propulsion.” The BWI statute applies to power vessels and vessels that are at least twelve feet long. A canoe that is less than twelve feet long, for example, would not be covered by the law since it is not a power vessel. A motorboat of any length would be covered.

The BWI statute also determines penalties the same way as the DWI statute. It establishes four levels of the offense:
1. First offense with BAC of at least 0.08 percent but less than 0.10 percent;
2. First offense with BAC of 0.10 percent or more, or while under the influence of drugs;
3. Second offense; and
4. Third or subsequent offense.
Penalties may include driver’s license suspension, loss of boating privileges, fines, and jail time.
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The state has the burden of proving guilt in New Jersey driving while intoxicated (DWI) cases. This is a difficult burden to meet. A DWI lawyer’s job, in part, is to challenge the reliability of the methods that prosecutors may use to prove that a defendant was under the influence of alcohol or drugs. Many of the tests that police use are not as reliable as the public might think. A person can fail a field sobriety test for numerous reasons besides intoxication, for example. Breath testing devices can be highly unreliable without careful maintenance and operation. Before prosecutors can introduce evidence based on an unfamiliar scientific process or device, New Jersey courts require evidence that this process or device has the scientific community’s acceptance. This is known as the Frye standard. Several types of evidence used in New Jersey DWI cases have faced the Frye standard over the years.

What Is the Frye Standard?

The Frye standard gets its name from a 1923 decision by the D.C. Circuit Court of Appeals. It applies to methodologies, processes, or devices that courts have not encountered before. In order for evidence based on a new device or process to be admissible, the party introducing it must show that it has “general acceptance in the particular field in which it belongs.”

Many jurisdictions have abandoned Frye because it imposes such a stringent standard of proof. New Jersey courts still use it for criminal and motor vehicle offenses.

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In any New Jersey courtroom proceeding, neither side can present any evidence unless the court has found that it is admissible. Municipal court judges hearing driving while intoxicated (DWI) cases often have to rule on defendants’ motions to suppress evidence that police allegedly obtained unlawfully. They must rule on objections to testimony based on rules about relevance and hearsay. Scientific evidence presents additional challenges, especially when it involves new or unfamiliar techniques or technology. With police around the state preparing to roll out a new Alcotest device in DWI cases, it is worth considering how courts decide whether to admit new scientific evidence.

Why is there a need for a separate standard for scientific evidence?

Trials and hearings may have two types of witness testimony. Fact witnesses can testify about what they saw and heard. They are not supposed to insert their own opinions. A person who witnessed a car accident, for example, can testify about what they saw, but not about why they think the accident happened.

An expert witness can testify about their opinions on certain matters. In order for the court to accept them as an expert witness, they have to testify about specialized education, training, or experience that gives them greater insight into an issue than most people. A DWI defendant who failed the field sobriety tests because of a leg injury could have their doctor testify about that injury. The doctor’s medical training allows them to offer an opinion that the leg injury could have caused the defendant to stumble.
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Police officers in New Jersey use a device known as the Alcotest to determine a person’s blood alcohol content (BAC) in cases of suspected driving while intoxicated (DWI). The model currently in use throughout the state, the Alcotest 7110 MKIII-C, is subject to numerous restrictions established by the New Jersey Supreme Court in 2008. The New Jersey Attorney General recently announced plans to test a newer model, the Alcotest 9510, in some areas of the state. While the Alcotest 9510 has features that appear more “high-tech” than the 7110, its scientific reliability is far from established. The 7110’s reliability is still questionable in many cases, so switching to a new device is sure to be contentious.

What Is the Alcotest?

“Alcotest” is a brand name that belongs to Dräger, a company that manufactures a variety of devices used in healthcare, law enforcement, and other areas. Alcotest products include handheld devices, similar to a Breathalyzer, that provide fast BAC readings from breath samples, and larger breath-testing devices like the Alcotest 7110 that are not portable.

Police bring DWI suspects to the police station for testing by an officer who is certified to operate the Alcotest 7110. The 2008 New Jersey Supreme Court decision, State v. Chun, established procedures that police must follow in order to ensure the best chance for accurate results. For example, police must observe the suspect for twenty minutes before collecting a breath sample. During that time, the suspect must not place anything in their mouth that might interfere with the test. If anything enters the person’s mouth, even by burping, the twenty-minute clock must restart.
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In New Jersey, driving while intoxicated (DWI) is a serious offense that can result in significant penalties. A conviction for DWI results in a suspension of your driver’s license, as well as a fine and the possibility of jail time. The state has to follow a lengthy process before the case gets to the point at which you could face a conviction. This process can seem overwhelming to many people. An experienced DWI attorney can help you understand how the process works and what you may do to assert your rights. The following is an overview of what happens during a typical New Jersey DWI arrest.

Investigation at the Scene

A traffic stop is one of the most common ways in which a DWI case begins. A police officer might see a car driving erratically and suspect DWI. They might pull someone over for another traffic violation, such as running a red light, and suspect DWI based on factors like the driver’s behavior or the smell of alcohol.

The officer must have probable cause to suspect a driver of DWI before they may proceed further with an investigation. They may ask a driver questions about whether they have had anything to drink. They may also ask the driver to perform certain field sobriety tests (FSTs). A driver can refuse to perform the FSTs, but that most likely will not stop the officer from placing them under arrest.

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The Bill of Rights and New Jersey law protect various rights of drivers suspected of driving while intoxicated (DWI). Knowing your rights may help you make informed decisions about what to do — and what not to do — if the police pull you over. Violations of your legal or constitutional rights by police could give you defenses that you can raise in court. The following is an overview of your rights during a New Jersey DWI investigation.

The Right to Freedom from “Unreasonable Searches and Seizures”

The Fourth Amendment prohibits police from searching a person or their property, seizing property, or detaining a person without a warrant issued by a court. Many exceptions to this rule exist, but police must demonstrate that an exception applies.

Police Must Have Reasonable Suspicion to Stop Your Vehicle

When a police officer pulls your car over on the road, they must be able to show that they had a reasonable basis for suspecting a traffic violation or other offense, such as if they witnessed you running a stop sign or driving erratically.
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A case involving alleged driving while intoxicated (DWI) can have many possible outcomes, ranging from the dismissal of all charges to a conviction after a trial before a municipal court judge. Even then, a defendant might still have the right to appeal or to seek post-conviction relief. Like any kind of court proceeding, few DWI cases ever go to trial. Many DWI cases, perhaps most, result in pleas or plea agreements of some kind. New Jersey law limits the use of plea agreements in DWI cases, but a knowledgeable DWI attorney can advise their clients about whether a plea would be a good idea. One type of plea that is available in New Jersey DWI cases, the conditional guilty plea, enables a defendant to appeal certain decisions made by a municipal court before trial.

Prosecutors have the burden of proving that a defendant is guilty of each element of the offense of DWI. State law defines DWI as operating a motor vehicle either (1) while under the influence of alcohol or drugs or (2) with blood alcohol content (BAC) of at least 0.08 percent. Chemical testing of a DWI suspect’s breath, blood, or urine can determine their BAC. Even without chemical test results, a prosecutor can establish that a defendant was impaired with eyewitness testimony from police officers and expert testimony from drug recognition experts.

Defending against a DWI charge could involve challenging any part of the state’s case. A DWI lawyer might, for example, challenge the validity of the initial traffic stop. If the police officer did not have reasonable suspicion of any sort of traffic violation, then the stop violated the defendant’s Fourth Amendment rights. The court should suppress any evidence obtained as a result of the unlawful traffic stop. A successful motion to suppress based on an unlawful traffic stop often results in dismissal of the case, since it would leave the state with very little evidence. A defendant and their attorney could also move to suppress evidence based on other violations of their rights, such as breath test results from an Alcotest device that was not in compliance with state law.
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Attorneys representing people charged with driving while intoxicated (DWI) in New Jersey municipal courts can use pretrial motions to give their clients a better chance of achieving a positive outcome. A motion to suppress evidence is one of the most powerful pretrial motions a lawyer can use. It seeks to prevent the state from using evidence obtained in violation of a defendant’s constitutional rights. If successful, a motion to suppress limits the amount of evidence that prosecutors may introduce in court. It may even result in the dismissal of the DWI charge.

What Is a Motion to Suppress?

A motion to suppress is based on the “exclusionary rule.” The Fourth Amendment to the U.S. Constitution requires police to obtain a warrant before searching a person or their property, with some exceptions. If police conduct a search that violates a defendant’s Fourth Amendment rights, the exclusionary rule blocks prosecutors from using that evidence at trial.

The exclusionary rule applies to any evidence that police could only obtain through an unlawful search. This evidence is known as the “fruit of the poisonous tree.”
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The U.S. Constitution protects people’s rights in court proceedings, particularly cases that can result in jail time and other punishments. This includes driving while intoxicated (DWI) cases in New Jersey and around the country. The Due Process Clauses of the Fourth and Fourteenth Amendments, as interpreted by the courts, require prosecutors to prove a defendant’s guilt “beyond a reasonable doubt.” This is the toughest burden of proof in our legal system. While DWI is a motor vehicle offense in New Jersey, not a criminal offense, a conviction can lead to significant penalties. The same due process protections apply to DWIs and other motor vehicle cases. “Beyond a reasonable doubt” is a highly subjective standard, but it can be the key to defending against a DWI charge.

What Is a Burden of Proof?

In any court proceeding, someone is responsible for establishing a legal claim and providing supporting evidence. This responsibility is known as the burden of proof. Plaintiffs generally have the burden of proof in a civil lawsuit, and prosecutors have it in criminal and motor vehicle cases.

The person with the burden of proof must convince the judge about their legal claims. Since DWI cases in New Jersey do not have jury trials, the judge also decides whether the state has met its burden of proving the facts.
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