New Jersey DWI Attorney Blog

August 12, 2015

New Jersey Supreme Court Retroactively Applies 2013 U.S. Supreme Court Ruling on Forced Blood Draws in DWI Cases

The New Jersey Supreme Court (NJSC) recently reversed a decision by the Superior Court, Appellate Division regarding a warrantless blood draw in a DWI case. The decision, State v. Adkins, applied a 2013 ruling by the U.S. Supreme Court (USSC), Missouri v. McNeely. Many courts had allowed police to take blood samples from DWI suspects without a warrant under the “exigent circumstances” exception to the Fourth Amendment’s search-warrant requirement, based on the fact that alcohol breaks down in the bloodstream over time. The USSC ruled in McNeely that “the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” In Adkins, the NJSC ruled that McNeely “must apply retroactively to cases that were in the pipeline” at the time of the USSC’s ruling. It reversed the Appellate Division’s ruling but remanded the case for further proceedings regarding whether other “exigencies” might have been present.

The defendant in Adkins was involved in a single-car accident in December 2010 and was arrested on suspicion of DWI. The court noted that police, for unknown reasons, did not collect a breath sample from the defendant, even though an Alcotest device was available. Instead, they took the defendant to a hospital for a blood draw. Police claimed that the defendant did not object to the blood draw, but the state did not contend that he consented to the procedure.

The USSC ruled in 1966’s Schmerber v. California that forced, warrantless blood draws in DWI cases do not violate the Fifth Amendment privilege against self-incrimination, and they may be justified by the “exigent circumstances” exception to the Fourth Amendment. The court did not, however, address specific “exigencies.” McNeely narrowed Schmerber’s scope by excluding alcohol metabolism as an exigent circumstance.

August 3, 2015

Is a “Necessity” Defense Possible in a New Jersey DWI Case?

by Evan M. Levow

The defense of “necessity” claims that a person charged with an offense was justified in committing an otherwise unlawful act, and therefore should not face legal penalties. New Jersey law, as interpreted by New Jersey courts, sets a high bar for a defendant claiming necessity, but once a defendant clears this bar, the burden shifts to the state to disprove the necessity defense beyond a reasonable doubt. A recent decision by the New Jersey Superior Court, Appellate Division, State v. A.T., considered whether a defendant could raise the necessity defense in a DWI case. While the court ultimately affirmed the defendant’s conviction, it addressed some important criteria for establishing necessity in such a case.

The defendant in A.T. was found guilty of third-offense driving while intoxicated. She was sentenced to 180 days in jail, a 10-year license suspension, and one year of ignition interlock use. The Law Division affirmed the verdict and sentence, and the case went to the Appellate Division. The necessity defense arose from the circumstances that led to the defendant being behind the wheel on the night she was arrested. She was allegedly concerned about domestic violence, and unfortunately the various courts’ rulings follow the common pattern of demanding a high burden of proving such a threat.

The defendant testified that she was at her boyfriend’s apartment, drinking beer, when her boyfriend’s brother told her to leave. She refused to leave, and she claimed that he became upset, began yelling, and threatened to call the police. He also, she alleged, prevented her from using the telephone. She testified that both she and her boyfriend tried to calm the brother down, and they told him that the defendant was in no condition to drive. She claimed that she left the apartment because “she feared physical abuse and arrest.” She drove part of the way home, but then she changed her mind and turned around. She testified that she did not think she could get all the way home safely, and that if the police were at her boyfriend’s apartment, they might be able to help her. On her way back to the apartment, she struck two parked vehicles, which led to her arrest.

July 28, 2015

New Jersey Courts Hold that Chun’s Twenty-Minute Waiting Period in DWI Cases May Not Be Used for Delay

by Evan M. Levow

The New Jersey Supreme Court’s 2008 ruling in State v. Chun is one of the most important decisions affecting the rights of DWI defendants in this state. It caused major changes in how the state uses Alcotest machines to collect breath samples from DWI suspects. Chun also established mandatory procedures that safeguard DWI suspects against inaccurate test results, including a 20-minute waiting period prior to a breath test. In some situations, however, an individual could open themselves up to a charge of refusal to submit to a breath test, if an officer concludes that they are intentionally stalling.

Chun established that an officer must wait 20 minutes before collecting breath samples from a suspect, in order to ensure that no foreign substances are present in or around the suspect’s mouth that could affect the test results. During this time, the officer who will administer the test must observe the suspect to see if they place anything in their mouth, or if they swallow or regurgitate anything. If the officer notices anything entering or exiting the person’s mouth, notices that the person has gum or chewing tobacco in their mouth, or sees the person touch their mouth with their hand or any other object, the 20-minute observation period must start over.

This waiting period could come into conflict with New Jersey laws regarding implied consent to breath or blood testing. An individual who is instructed to provide a breath sample based on probable cause to suspect DWI may face a separate charge for refusal if they give anything short of total cooperation to the officer. Courts have sustained refusal convictions in cases where individuals failed to submit enough of a sample for the device to conduct an accurate test, and even cases in which a defendant agreed to submit a breath sample but tried to add a condition for doing so. This raises the question of whether a New Jersey DWI defendant could face a refusal charge for requiring multiple re-starts of the 20-minute Chun observation period.

July 22, 2015

How Federal Law Could Affect a New Jersey DWI Case

by Evan M. Levow

The United States has a federal system of government, in which state governments have the authority to pass laws with regard to some issues, and the federal government in Washington handles other issues. Criminal law is one of many areas where state and federal governments might overlap, but driving while intoxicated (DWI) is almost always handled at the state level. A DWI may be subject to prosecution under federal law in some situations, and various federal agencies have established penalties for certain people with DWI convictions. Congress has also found ways to influence state laws relating to DWI.

Overview of New Jersey DWI Law

In New Jersey, the state must prove that a driver was either impaired as a result of alcohol or a controlled substance, or had a blood alcohol concentration (BAC) of 0.08 percent or more. Penalties for DWI increase based on the number of prior convictions or the driver’s BAC. A driver who is under 21, the state’s legal drinking age, could be charged with underage DWI if they have a BAC of 0.01 percent or more. New Jersey also makes it an offense to refuse to submit a breath sample for BAC testing when a police officer has probable cause to suspect DWI, which can result in license suspension.

July 16, 2015

New Jersey Appellate Court Finds Guilty Plea Insufficient in DWI Case from 11 Years Ago, Orders New Trial

by Evan M. Levow

A New Jersey DWI defendant will get a new trial 11 years after he entered a guilty plea. The Superior Court, Appellate Division ruled in State v. Aratow that his 2004 plea did not meet several constitutional requirements set out in the New Jersey Rules of Court. The defendant filed a petition for post-conviction relief (PCR) in 2011 in connection with a new DWI charge, seeking review of the 2004 plea. The court held that the record did not support the lower courts’ findings that the defendant pleaded guilty in 2004 with a full understanding of the consequences, nor did the municipal court establish all of the facts required to sustain a DWI conviction. It reversed the lower court rulings and remanded the case to the municipal court for trial on the original charges.

The defendant received his first conviction for driving while intoxicated (DWI) in November 1988. He was charged with DWI a second time in February 2004, and he appeared pro se in municipal court that April. The municipal judge questioned the defendant about his right to counsel and his decision not to have an attorney present. The judge stated that, since the defendant’s first DWI conviction was over a decade old, the court would treat this as a first offense. The defendant stated, under oath, that he drank about three vodka and tonics on the night of his arrest and that he wished to plead guilty. The court entered the plea at that time.

In June 2009, the defendant was charged with DWI again. He pleaded guilty in June 2011, but the court treated it as a third offense and sentenced him to a 10-year license suspension and 180 days in jail. It stayed the jail sentence so that he could file a PCR petition. In the petition, the defendant claimed, in part, that his 2004 guilty plea did not meet certain constitutional standards.

July 1, 2015

New Jersey Considers “Excusable Neglect” Argument by Defendant Who Sought Post-Conviction Relief More than Two Decades After DWI Case

by Evan M. Levow

The defendant in a DWI case appealed the denial of his motion for post-conviction relief (PCR), which the municipal court and the Superior Court, Law Division said was not filed in a timely manner. He claimed that he was not aware of his right to bring a motion for PCR, and he noted that he was not represented by counsel in his earlier DWI case. These factors, he argued, constituted “excusable neglect,” which would allow a court to waive the usual five-year deadline to bring a PCR motion. The Appellate Division disagreed, finding in State v. Reese that a lack of knowledge of the law does not excuse a late filing. The court’s decision underscores the importance of retaining knowledgeable counsel at the earliest stage of a DWI case.

The original DWI case began in August 1983, when the Hammonton Municipal Court issued a summons for driving while intoxicated and driving while license suspended. The defendant failed to appear at the September court date but called the court prior to the rescheduled court date that October. The court postponed the case several times in 1983 and 1984. It issued a bench warrant for failure to appear in March 1984, but when police tried to serve the warrant, they noted that the defendant no longer lived at his address on file.

The case remained inactive until May 1991, when the defendant tried to restore his driver’s license at the Department of Motor Vehicles and was informed that a case was pending against him in Hammonton. He appeared in court shortly afterwards without an attorney. He claims that he did not waive his right to counsel, and the court did not advise him of his right to a court-appointed lawyer. An entry on the back of the summons says that he was “advised as to rights” and then simply has the notation “waived.” The defendant pleaded guilty to the DWI charge.

June 25, 2015

Defendant Argues “Mistake of Law” in New Jersey DWI Appeal

by Evan M. Levow

In a New Jersey DWI case, a defendant may claim that a police officer made a mistake that affects the outcome of the case. A “mistake of law” might involve conduct that an officer incorrectly believes is against the law, while a “mistake of fact” could be an error or misconception that leads an officer to wrongly think a driver has committed an offense. Mistakes of law are more likely to help a defendant fighting a DWI charge, although the legal landscape has recently changed considerably. A New Jersey Appellate Division decision, State v. Fath, involved an alleged mistake of law by the arresting officer that required dismissal of the DWI charge. The court found that it was actually a mistake of fact and that the officer’s decision to stop the defendant’s vehicle was justified on other grounds.

The arresting officer testified that he was stopped at a red light, facing the defendant’s vehicle, when he saw her make a right turn on red in violation of a posted “no right turn on red” sign. He followed her and then claimed that he witnessed her “carelessly cross oncoming traffic in order to make a left-hand turn.” He pulled her over, and she was ultimately charged with DWI, careless driving, and “failing to observe a traffic signal prohibiting a turn on red.”

The defendant moved to suppress the evidence obtained during the traffic stop. New Jersey traffic law requires drivers to obey all traffic control devices “placed in accordance with the provisions of this chapter.” Right turns on red are allowed “unless an official sign…prohibits the same.” The defendant produced a certification from the New Jersey Department of Transportation stating that it had failed to find any official approval of a “no right turn” sign at that intersection. In other words, she argued that the sign was not “an official sign” under New Jersey law, and it was therefore a mistake of law for the officer to stop her for making a right turn.

June 19, 2015

Recent Decisions in Several New Jersey DWI Appeals Demonstrate that Actual Driving Is Not Always Required to Sustain a DWI Conviction

by Evan M. Levow

In order to prove that a defendant has committed the offense of driving while intoxicated (DWI) in New Jersey, prosecutors do not necessarily have to provide direct proof that the defendant was driving, such as through testimony from an arresting officer that they saw the defendant driving erratically, or that they pulled the defendant over on suspicion of another traffic offense and noticed signs of intoxication. Under New Jersey law, the key element of a DWI offense is that a defendant has control of a vehicle while under the influence of alcohol or drugs. Several recent decisions by the New Jersey Superior Court, Appellate Division deal with situations where an arresting officer did not witness actual driving, but where the court still found the defendant guilty of DWI.

New Jersey’s DWI statute defines the offense, in part, as “operat[ing] a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or…with a blood alcohol concentration of 0.08% or more…” While the plain meaning of these words suggests that the state must prove actual operation of a vehicle, New Jersey courts have held that it is enough to prove that a defendant was imminently capable of operating a vehicle, or that evidence suggests that they had been operating the vehicle before the arresting officer’s arrival on the scene.

Evidence supporting a DWI conviction could include testimony indicating that the vehicle could not have gotten into the position where the officer found it without the defendant driving it there, or something as simple as the officer finding the defendant in the driver’s seat of a stopped vehicle with the engine running. Municipal courts decide many cases based on the defendant’s own admission that they had been driving earlier.

June 17, 2015

New Jersey Appellate Court Applies Alcotest Rules Established in State v. Chun

by Evan M. Levow

A defendant in a DWI case, State v. Arbuckle, appealed his conviction after a trial de novo in the Superior Court, Law Division. He argued in part that the court erred in admitting Alcotest results into evidence. The Appellate Division noted that the lower court had applied factors established by the New Jersey Supreme Court in State v. Chun when it reviewed the arresting officer’s conduct in administering the Alcotest. Chun was a landmark 2008 decision regarding the use of Alcotest machines by New Jersey law enforcement. We represented one of the defendants in that case and participated in the argument.

In the present case, the defendant was arrested shortly after 2:00 a.m. on January 26, 2013. The arresting officer reportedly responded to “an anonymous call that a snow plow was recklessly kicking up dirt and rocks” in the parking lot of a club in Manville, New Jersey. The officer observed the defendant in a vehicle “with its plow down despite the lack of snow on the roads.” He claimed to have smelled alcohol on the defendant’s breath and stated that the defendant admitted to drinking. The officer testified that he terminated the field sobriety tests because the defendant could not keep his balance. He placed the defendant under arrest and took him to the station for breath testing.

Under Chun, an officer administering an Alcotest must wait 20 minutes before collecting a breath sample because of the risk of a false reading caused by residual alcohol in a person’s mouth. They must observe the person for the entire 20-minute period to make sure that no additional alcohol gets into the person’s mouth. The 20-minute period must start over if the person vomits or otherwise regurgitates, if they swallow anything, or if the operator notices any foreign object in the person’s mouth, such as gum or chewing tobacco. According to a 2012 Appellate Division ruling, State v. Carrero, the operator does not have to maintain eye contact with the person for the entire 20 minutes. They are only required to maintain as much visual contact as is needed to determine if they have “ingested or regurgitated something that would confound the Alcotest results.”

June 9, 2015

U.S. Supreme Court Ruling Limits Police Authority During Traffic Stops

by Evan M. Levow

A recent ruling by the U.S. Supreme Court, Rodriguez v. United States, establishes limits on police authority during traffic stops. The court ruled that an officer’s authority over the driver ends once the officer accomplishes the “mission” of the traffic stop, which in this specific case involved writing a warning ticket for a minor traffic violation. Anything that occurs after the “mission” is complete violates the Fourth Amendment prohibition on unreasonable searches and seizures. Since many DWI cases begin with a traffic stop for a minor infraction, this ruling could have a significant impact. At the same time, it still allows police to conduct further investigations, such as field sobriety testing, if they can show probable cause to suspect DWI.

A police officer pulled the defendant over for driving on the shoulder of a highway. He questioned the defendant and his passenger, ran a criminal check on the defendant’s license, and issued a warning ticket. While he acknowledged that he had completed the purpose of the stop, he did not let the defendant go. Instead, he ordered the defendant and the passenger out of the vehicle and made two passes with a drug-sniffing dog. On the second pass, the dog alerted to something in the vehicle, which turned out to be methamphetamine.

The drug-sniff search prolonged the traffic stop for an additional seven or eight minutes after the officer wrote the ticket. The defendant moved to suppress the evidence from the search of his vehicle, arguing that the officer lacked probable cause. The trial court denied the motion, finding that, while the officer lacked probable cause to search for drugs, the seven- or eight-minute extension of the stop was a minimal intrusion on the defendant’s rights and was therefore permissible. The court of appeals affirmed this ruling.