New Jersey DWI Attorney Blog

December 8, 2015

Post-Conviction Relief Allows Defendants to Challenge Legality of Sentence in New Jersey DWI Cases

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.

December 3, 2015

New Jersey DWI Arrests, Part 2: Beyond Traffic Stops

by Evan M. Levow

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.

December 1, 2015

New Jersey DWI Arrests, Part 1: Traffic Stops

by Evan M. Levow

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.

November 24, 2015

New Jersey Township Offers Free Rides in Effort to Reduce DWI

by Evan M. Levow

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.

November 14, 2015

Grounds for Post-Conviction Relief in New Jersey DWI Cases

by Evan M. Levow

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.

October 31, 2015

New Jersey Supreme Court Reverses Its Own Rule on Warrantless Car Searches

by Evan M. Levow

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.

October 27, 2015

New Jersey Court Finds that “Marijuana Smell” Can Still Provide Probable Cause, Despite State’s Medical Marijuana Law

by Evan M. Levow

Marijuana laws are undergoing reform all over the country. Numerous states allow medicinal marijuana use with a doctor’s prescription, and a handful of states have decriminalized it for recreational use. It remains illegal under federal law, however, and is only permitted for limited medicinal purposes in New Jersey under the Compassionate Use Medical Marijuana Act (CUMMA), which became law in 2010. A September 2015 ruling from the New Jersey Appellate Division, State v. Myers, held that the smell of marijuana may still serve as the basis for probable cause for an officer to conduct a search. The case did not specifically involve driving while intoxicated (DWI), but its holding affects DWI cases throughout the state.

According to the court’s ruling, a state trooper responded to a report of gunshots at about 1:00 a.m. in Cumberland County. The trooper testified that he observed three parked cars, one of which appeared to be occupied, next to a residence that was hosting a party. He approached that car and briefly spoke with the defendant, who was in the driver’s seat. He then went to the residence and spoke to the party host.

While the trooper was returning to his vehicle, he noticed that the defendant had moved his car to a nearby driveway. A woman was yelling at the defendant to move his vehicle. The trooper claimed that he found it “suspicious” that the defendant had moved his car, so he approached the vehicle again. He claimed that this time, he “detected the odor of burnt marijuana coming from the car.” He instructed the defendant and his two passengers to exit the car, and he placed all three under arrest. He conducted a “search incident to arrest” and found a small bag of marijuana and a handgun in the defendant’s jacket.

October 26, 2015

City Faces Massive Backlog of Untested Blood Samples, Potentially Delaying DWI Prosecutions

by Evan M. Levow

A Texas city is facing a major backlog of blood samples collected in driving while intoxicated (DWI) cases. San Antonio subjects DWI suspects to mandatory blood draws if they refuse to submit a breath sample. Police use breath or blood samples to determine blood alcohol content (BAC). A BAC level of 0.08 percent or higher is legally presumed to be evidence of intoxication, although BAC evidence is not always essential to a prosecutor’s case. The backlog does not appear to be causing a delay in pending DWI cases, at least according to local prosecutors. The U.S. Constitution, however, guarantees defendants a right to a speedy trial, so backlogs in the processing of evidence are always cause for concern.

Bexar County, Texas, whose jurisdiction includes San Antonio, had a contract with a private laboratory to test blood samples in DWI cases. The District Attorney (DA) canceled the contract shortly after taking office in early 2015. A series of documentation errors by the laboratory called hundreds of DWI cases into question. This included the alleged mislabeling of up to 350 blood samples, first discovered in 2014. The county now faces a backlog of over 1,000 samples, with no efficient means of testing them.

New Jersey DWI law, we should note, differs from Texas law with regard to blood draws. Multiple Texas cities have enacted “no refusal” policies that mandate blood draws from all DWI suspects who refuse a breath test. San Antonio expanded this policy from weekend traffic stops to all traffic stops in 2011. New Jersey drivers are subject to the implied consent statute for breath testing, meaning that anyone driving on New Jersey roads has, solely by virtue of driving, consented to providing a breath sample to a police officer who suspects DWI. This statute does not apply to blood samples. Police may still compel a person in New Jersey to submit a blood sample without a warrant, however, in certain circumstances.

October 16, 2015

Crime Lab Employees Allege Problems with Breath-Testing Machines Used in DWI Cases

by Evan M. Levow

A federal court of appeals recently ruled that part of a lawsuit filed by two former Houston Police Department (HPD) crime lab employees may continue in trial court. The plaintiffs in Culbertson v. Lykos allege that they faced retaliation by multiple officials after they exposed problems with the HPD’s Breath Alcohol Testing (BAT) vans, vehicles used as mobile sites for breath testing of DWI suspects. The allegations led to an investigation of HPD and the Harris County District Attorney (DA), and a review of multiple DWI cases. Breath testing devices require careful calibration and regular maintenance, and the misuse of a device ought to bring an end to a DWI prosecution. The matter is somewhat reminiscent of our efforts to establish guidelines for the use of Alcotest devices by New Jersey law enforcement, which resulted in the New Jersey Supreme Court’s ruling in State v. Chun.

Houston, Texas first approved funds for six BAT vans in late 2007 for use “as mobile Intoxilyzer units for the processing of DWI suspects.” The vans reportedly entered into service in 2010. DWI defense advocates shortly began raising concerns about the accuracy and reliability of mobile breath-testing devices.

The plaintiffs in Culberson worked as a criminal specialist and a criminalist in HPD’s crime lab. They both resigned in 2011, partly due to “dissatisfaction with the BAT vans.” One plaintiff, the criminal specialist, was subpoenaed by the DA to testify at a DWI trial in May 2011. She reportedly testified that she inspected the BAT vans and found them to be in working order, but she would not testify that they were working properly at the time the defendant was tested. The jury returned an acquittal.

October 5, 2015

Medical Marijuana Patient Acquitted of DWI

by Evan M. Levow

The offense of driving while intoxicated (DWI) includes more than just alcohol. Almost any drug that causes an impairment can lead to a DWI charge. The law in New Jersey and other states specifically sets a “legal limit” for blood alcohol content (BAC), but it does not always specify an amount for other substances. Different substances also require different tests, and not all tests are reliable. A driver charged with DWI in Colorado due to a positive marijuana test recently obtained an acquittal after she argued that the marijuana test cannot prove that she was impaired at the time she was driving. Colorado law is significantly different from New Jersey law on this issue, but this state’s law is gradually changing.

Colorado is one of a handful of states to have effectively legalized marijuana for both medical and recreational use. In New Jersey, marijuana remains a Schedule I controlled substance, except for some narrow exceptions allowed by the New Jersey Compassionate Use Medical Marijuana Act (CUMMA). The defendant in the Colorado case reportedly moved to that state specifically so that she could use marijuana for her chronic back pain. An officer pulled her over in June 2014, not for erratic driving but for an expired license plate tag. After noticing the smell of marijuana, the officer required her to perform field sobriety tests, which she allegedly failed. A blood test showed a marijuana level of 19 nanograms, well above the state’s limit of five nanograms.

Prosecutors charged the defendant with DWI. They offered her a plea deal, which she reportedly rejected because it would require her to give up her medical marijuana card for up to two years. The case went to a jury trial, which is allowed in Colorado, unlike New Jersey. She argued that her test results were not conclusive evidence that she was impaired at the time she was driving her vehicle, since THC, the active component of marijuana, lingers in the bloodstream far longer than alcohol or other substances. While a blood test to determine BAC might indicate that a person recently consumed alcohol, she argued, a blood test for marijuana cannot tell whether or not a person is actually impaired. The jury agreed and nullified the charges.