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A defendant appealed his conviction of driving while license suspended (DWLS) to the New Jersey Superior Court, Appellate Division, claiming that the trial court should not have counted DWI convictions from New York as prior convictions under New Jersey law. State criminal law treats DWLS as a criminal offense, not a traffic offense, when the suspension is due to prior DWI convictions. The appellate court affirmed the trial court in State v. Galdieri, finding that state law includes out-of-state convictions, even if a prior case included mistakes of law.

DWLS is normally a traffic offense under New Jersey law. It is a crime of the fourth degree, however, if the reason for the suspension is a second or subsequent conviction for DWI or refusal to submit to breath testing. According to the court, the defendant in Galdieri had two DWI convictions from the state of New York, although it does not say when these occurred. The defendant pleaded guilty to DWI in a New Jersey court in October 2012. The court suspended his license for three months, which is the penalty for a first DWI offense. This apparently happened because the judge was not aware of the New York cases. Twelve days later, the defendant was pulled over and charged with DWLS, which resulted in the present case.

The defendant pleaded guilty to criminal DWLS in June 2013, based on the prior DWI convictions. On appeal, the defendant apparently conceded that he had prior DWI convictions from the state of New York, but he claimed that they should not count towards enhancing the offense to the criminal level. He argued that the October 2012 DWI conviction in New Jersey should count as a first offense, since it was the only New Jersey conviction and the judge imposed the penalty for a first offense.

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A person’s blood alcohol content (BAC) at the time of an arrest for suspected driving while intoxicated (DWI) is not the only factor police and prosecutors may take into account. Numerous other factors come into play, and a person could be charged with DWI or related offenses even if chemical testing shows a low BAC. This was demonstrated by the recent arrest of a man for intoxication manslaughter, despite a breath test reportedly showing BAC below the legal limit. Defending a case without BAC evidence, or with BAC results that are less than 0.08 percent, presents different challenges than a case that relies on breath or blood testing.

Police arrested a man in Austin, Texas in mid-January 2015 after the pickup truck he was driving allegedly collided with another vehicle at about 1:40 a.m. The driver of the other vehicle was pronounced dead at the scene. The driver of the pickup truck allegedly told officers that he had had two beers at a bar earlier. He also allegedly admitted running a stop sign immediately before the collision.

A portable breathalyzer test showed a BAC of 0.07 percent, below the legal limit of 0.08 percent. Officers at the scene, however, stated that they observed enough other factors to conclude that he was legally impaired, and that probable cause existed to charge him with intoxication manslaughter, a specific offense under Texas law. The fact that this case involved a fatality undoubtedly played a role in the decision to charge the driver with an alcohol-related offense despite the BAC results, but the state is not required to demonstrate a BAC of 0.08 percent or higher to prove DWI in all cases. This is true in New Jersey as well as Texas.

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New Jersey Governor Chris Christie rejected the Legislature’s effort to reform state law regarding penalties for driving while intoxicated (DWI) in a conditional veto issued in late March 2015. A “conditional veto” allows the Governor to object to a bill as passed, while presenting proposed revisions or a replacement. The Legislature may then decide whether or not to approve the Governor’s changes. The bill, passed by both houses of the Legislature, would substantially reduce mandatory license suspension periods while increasing requirements for ignition interlock devices (IIDs). The Governor’s primary objection was apparently to the repeal of mandatory license-suspension periods.

The bill, A1368, was first introduced in the Assembly in January 2014. The Assembly passed it in June 2014, followed by the Senate in February 2015. A substantial portion of the bill addresses license suspension and IID requirements. The New Jersey DWI statute currently requires, for first-time DWI offenders, a three-month license suspension if a person’s blood alcohol content (BAC) was 0.08 percent or higher but less than 0.10 percent, or a license suspension of seven months to one year if their BAC was 0.10 percent or higher. For a second DWI offense, current law mandates a two-year license suspension, followed by required installation of an IID. A third or subsequent offense results in a mandatory 10-year suspension with an IID requirement.

Under the changes made by A1368, the mandatory license suspension period for almost all DWI offenses would be 10 days, during which time they would be required to have an IID installed in their vehicle as a condition of license reinstatement. The period of time a person would be required to continue using the IID roughly corresponds to the length of the mandatory license suspensions under the current statute. The bill generally gives judges discretion to impose different periods of license suspension or IID use, based on factors like risk to the public, the person’s driving record, length of time without traffic violations, and hardship to the person or the person’s dependents.

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A New Jersey appellate court recently considered the question of whether a defendant must inform the court of prior convictions that, under New Jersey law, could result in an enhanced sentence. In an unpublished February 2015 decision, State v. Kane, the court ruled that a defendant charged with driving while license suspended (DWLS) was not obligated to inform prosecutors or the court that the suspension was due to a driving while intoxicated (DWI) conviction. State motor vehicle and criminal statutes include enhanced penalties in certain DWLS cases where DWI was the reason for the suspension. The court rejected the state’s arguments that the defense’s failure to provide this information constituted fraud and a breach of attorney ethics rules.

The defendant was arrested in January 2012 in Ocean City for talking on a cell phone while driving. She was subject to a 10-year suspension of her driver’s license at the time, according to the court, because of multiple DWI convictions. She pleaded guilty to DWLS in municipal court that March. DWLS is normally a “non-indictable offense,” and the judge sentenced her to 30 days in jail, to be served intermittently.

New Jersey law prescribes enhanced penalties for a DWLS if the underlying reason for the license suspension is a DWI offense. About seven months before the defendant’s plea, in August 2011, a new criminal statute became effective that made the defendant’s DWLS offense an indictable offense, with substantially greater penalties. The statute allows prosecution of DWLS as a fourth-degree crime, as opposed to a traffic offense, if the license suspension was due to DWI, and the defendant has one or more prior DWLS convictions.
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New Jersey’s legal system has developed several methods to discourage people with convictions for driving while intoxicated (DWI) and related offenses from getting behind the wheel after drinking. Along with every other state and the District of Columbia, New Jersey requires the use of ignition interlock devices (IIDs) in certain situations. At least one state has gone much further in restricting people with convictions, or even just arrests, for DWI and other offenses. Utah’s “alcohol restricted driver” (ARD) law prohibits drivers from operating a vehicle with any alcohol in their system for periods ranging from two to ten years, with a lifetime ban in some circumstances.

In order to start a vehicle equipped with an IID, the person must blow into the device, which operates much like a breathalyzer or other breath-test machine. If the device determines that the driver’s blood alcohol content (BAC) is above a threshold amount, which is usually 0.05 percent in New Jersey, it prevents the vehicle from starting for a period of several hours. The “legal limit” for DWI is 0.08 percent.

New Jersey’s DWI statute makes installation of an IID mandatory for offenses involving a BAC result of 0.15 percent or higher, as well as first-offense convictions for refusal to submit to chemical testing. A judge has discretion to order an IID for lesser offenses. Driving with a BAC above the IID amount, but below the legal limit of 0.08 percent, is not automatically a violation under New Jersey law, but any attempt to circumvent the IID, including by driving someone else’s car after drinking, is considered a violation.
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An individual who has made a name for himself publicizing the locations of police checkpoints in Southern California recently settled a wrongful arrest lawsuit against a California city. A police officer arrested him for alleged DWI, he claimed in his lawsuit, after he refused to submit to a field sobriety test. He maintained that he was not impaired, and that the officer had no probable cause to suspect that he was. While we as DWI attorneys would not necessarily encourage anyone to make a spectacle out of their assertion of their constitutional rights, this lawsuit demonstrates how police can infringe on the the rights of drivers during traffic stops, which can lead to dismissal of charges.

The plaintiff, using the name “Mr. Checkpoint,” operates a website that publishes the locations of police checkpoints, where officers stop vehicles at random to check for DWI. He makes this information available to people on the website, via the social media service Twitter, and through text message subscriptions. The practice is reportedly not popular with some law enforcement agencies, but L.A. Weekly noted in 2013 that making this information easily accessible encourages people who might otherwise drink and drive “to think about either staying home to party, finding a designated driver or calling a cab.”

The traffic stop that led to the lawsuit occurred in late 2011. He was pulled over in Santa Monica for allegedly making an illegal right turn. He recorded audio of this incident on his phone. The officer arrested him for DWI when he refused to perform a field sobriety test. He spent the night in jail, his car was impounded, and his dogs, who were in the backseat, were taken to the pound. He was able to retrieve the car and his dogs, and the prosecutors declined to file charges when blood test results showed no alcohol.

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DWI checkpoints have long been controversial among criminal defense attorneys and others who advocate for the rights of the accused. A series of videos recently posted on the internet purportedly show a person asserting his right to remain silent at checkpoints and then being allowed to proceed by police. Many drivers have refused to speak to officers at checkpoints around the country, but this is not a foolproof method of avoiding trouble with the police. Both the U.S. and the New Jersey Supreme Courts have affirmed the constitutionality of DWI checkpoints, although some states prohibit their use. If the police are authorized to stop a vehicle at random, a driver’s refusal to answer questions may not preclude police from finding probable cause to conduct a further search or make an arrest. New Jersey drivers need to know their rights, but they should also know what the law says police can do at DWI checkpoints.

A long-standing principle of American law is that police must have reasonable suspicion of a crime in order to initiate a traffic stop. Checkpoints seem to sidestep that requirement by allowing entirely random stops. A Florida lawyer has gained a considerable following with videos that show him refusing to speak to an officer, or even to roll down his window, at DWI checkpoints. Instead, he places his driver’s license and vehicle registration against the window, along with a note stating that he asserts his right to remain silent, does not consent to a search, and wishes to speak to an attorney. These are the basic rights guaranteed by, respectively, the Fifth, Fourth, and Sixth Amendments to the Constitution.

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Pretrial intervention (PTI) is a program operated by the New Jersey court system that allows defendants the chance to avoid the ordinary criminal prosecution process. Although it is not available to people charged with driving while intoxicated (DWI), it is still worth understanding because traffic stops and DWI arrests sometimes lead to criminal charges instead of, or in addition to, a DWI charge. The New Jersey Supreme Court recently considered the question of whether the state could deny admission to a PTI program based on prior dismissed charges or arrests. The case, State v. K.S., began with an arrest for alleged DWI, which led to additional criminal charges. The court held that the state cannot infer guilt based only on an arrest or a charge, and therefore it cannot keep a defendant out of PTI based on charges that were dismissed.

Defendants who qualify for the PTI program can avoid criminal prosecution in New Jersey courts. Participants in PTI may be ordered to perform community service, pay restitution, and complete other services. They must also avoid any further criminal trouble during their time in the program. If they complete the program, which can take up to 36 months, the case is dismissed, and they may be eligible to have the charge and arrest expunged from their record. Failure to meet any of these requirements results in the return of the case to the criminal docket.

New Jersey court rules and statutes set out the criteria for prosecutors and PTI program directors to consider regarding admission to the program. The program typically excludes people with prior convictions, people who are on parole or probation, and people who have previously been admitted to PTI or a similar program. DWI and related offenses are considered traffic offenses under New Jersey law, not criminal offenses. Defendants are therefore not eligible for PTI on the basis of a DWI charge.
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When police in New Jersey suspect someone of driving while intoxicated (DWI), they may ask them to take a field sobriety test (FST) before placing them under arrest. A person could “fail” FSTs for any number of reasons besides intoxication, such as injury, weather conditions, or even just standing on a slope. Challenging an officer’s administration of a test, which can significantly affect its outcome, can be extremely beneficial to a defendant’s case. As the first New Jersey lawyer qualified by the National Highway Traffic Safety Administration (NHTSA) to train law enforcement officers to administer FSTs, Evan Levow is in a unique position to assist defendants in DWI cases.

Many people believe that “passing” the FST will allow them to avoid being arrested, but most of the time, police have already made that decision. They usually hope that FST results will provide additional probable cause for the arrest, or that they will serve as circumstantial evidence of intoxication if chemical testing does not provide useful results. The state will try to show that any difference between how an officer explains a test and how a driver performs on it is evidence of impairment. The officer must follow specific guidelines for administering certain FSTs, however, and an error on the officer’s part could invalidate the entire test.

The NHTSA’s Standardized Field Sobriety Test (SFST) consists of three tests, with specific instructions for officers and a scoring system:

– One Leg Stand, in which the officer looks for impaired balance. The driver is instructed to stand with one foot about six inches above the ground while counting aloud, usually for 30 seconds.
– Walk and Turn, which also looks at balance as well as coordination and attention to instructions. The driver is instructed to walk heel-to-toe along a straight line, turn on one foot, and return along the same path.
– Horizontal Gaze Nystagmus (HGN), which refers to the involuntary jerking motion of a person’s eyes during side-to-side movement. The officer might tell a driver to look at the tip of a pen or other object, then follow it back and forth with their eyes. The theory is that HGN will be faster or more pronounced in intoxicated people. New Jersey courts do not allow use of the HGN test as evidence of guilt, as discussed more below. Continue reading

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“Distracted driving,” which typically refers to texting or talking on the phone while driving, is the subject of a wave of new laws around the country. While the focus is often on mobile phones, “distracted driving” laws could cover a much wider range of activities. This is of concern to us as DWI attorneys because any activity that a police officer reasonably believes to be a distraction could be grounds for a traffic stop, and all of the potential consequences of a traffic stop. No states have passed laws addressing specific distractions besides cell phones, although legislators in New Jersey have tried.

According to the state Attorney General, distracted driving was a factor in about 1.4 million automobile accidents in New Jersey between 2004 and 2013. This is nearly half of the three million accidents that occurred during this time period. Distracted driving was not the cause of all of those accidents, just a factor, but lawmakers have taken note and are taking a hard line on the subject. The Attorney General identifies activities that could constitute distractions while driving, including eating, checking one’s hair or makeup, using a GPS device or reading a map, and even adjusting the stereo. Any of these could, in theory, be grounds for a traffic stop.

In Georgia, police issued a citation to a man in mid-January 2015 for the alleged offense of “eating while driving.” The officer reportedly told the man that he had followed him for two miles after he purchased a hamburger from a fast-food restaurant, and that the officer had witnessed him eating the entire time. The officer wrote a ticket under the state’s distracted driving law, which does not specifically mention eating. Aside from cell phones and other mobile communications devices, Georgia law only requires drivers to “exercise due care.” Continue reading

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