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Discussing legal matters on the internet is really never a good idea, and this is especially true with regard to criminal cases. A Michigan woman, who was on probation for DWI, may be returning to jail because of a Facebook post in which she reportedly admitted to drinking alcohol. The probation department, alerted by local police, tried to investigate further, and subsequently asked the court to rule her in violation of the terms of her probation. This could result in her serving the actual jail term included in her conviction.

The woman was convicted of DWI and put on probation in 2012. She was reportedly participating in a specialized probation program for DWI offenders that required her to submit to random breath tests. The probation department brought in over two hundred “high risk probationers,” including her, for testing over the St. Patrick’s Day weekend. In a Facebook post later that day, she stated that she passed the breath test even though she had drank the previous day. She reportedly only had a few weeks left on her probation period at the time.

A police officer saw the Facebook post and notified the probation department. Since consuming alcohol could constitute a violation of her probation, the probation department ordered her to submit to additional testing. A probation officer called her to tell her to come in for a urine test, which would reveal whether she had consumed any alcohol during the previous eighty hours. The woman allegedly hung up on the probation officer. The department considered this a violation of her probation, and notified the court. Continue reading

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A decision issued by the U.S. Supreme Court last year limits the ability of police to take a blood sample from a DWI suspect without consent or a warrant. Missouri v. McNeely, 133 S.Ct. 1552 (2013). The Fourth Amendment protects people from unreasonable searches and seizures, and generally requires law enforcement to obtain a warrant before searching private property. Police can claim “exigent circumstances” to justify a warrantless search, meaning that in a specific emergency situation, they cannot take the time to obtain a warrant. The McNeely case addressed claims by police that the human body’s process of metabolizing alcohol was an exigent circumstance that justified taking a blood sample without a warrant. In response to the decision, the New Jersey Supreme Court has modified its procedures for search warrant requests to ensure that judges are available to issue warrants.

The defendant in McNeely was stopped by a highway patrolman for speeding. The officer claims that defendant did not perform well in a field sobriety test, and he refused a breath test. En route to the police station, the defendant refused a breath test again, so the officer diverted to a hospital and directed a hospital technician to take a blood sample. The defendant did not consent to having blood drawn, and the officer did not obtain a warrant. Lab testing showed blood alcohol content (BAC) of 0.154 percent, almost twice the legal limit of 0.08 percent.

The state charged the defendant with driving while intoxicated, but the court granted the defendant’s motion to suppress. It held that the warrantless blood test violated his Fourth Amendment rights. When the Missouri Supreme Court affirmed the decision, the U.S. Supreme Court took the case in order to resolve a conflict with its own prior decision in Schmerber v. California, 384 U.S. 757 (1966). That case held that an officer might reasonably conclude that the breakdown of alcohol in the bloodstream constituted “exigent circumstances,” id. at 770-71, but limited its holding to the specific circumstances of the case. In McNeely, the court rejected establishing a “per se rule” that alcohol metabolism justifies a warrantless blood test. 133 S.Ct. at 1561. Continue reading

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New Jersey allows people to expunge their criminal files in many types of cases, meaning that information related to a criminal case is removed from state and local agencies’ records and will not show up in most criminal background checks. Unfortunately, state law specifically excludes motor vehicle offenses, including driving while intoxicated, from eligibility for expungement. Even arrests for DWI are ineligible. Other states are considering similar laws to allow expungement of criminal records, but the proposed laws would similarly exclude DWI offenses. This effectively places DWI offenses, regardless of the specific circumstances, in the same category as non-expungeable violent crimes.

Because it is a motor vehicle offense and not a criminal offense in New Jersey, DWI convictions are not expungible. Likewise, the arrest for DWI is not expungible, however, again, because DWI is a motor vehicle offense, the arrest is not even “of record” on any criminal database. In other words, when stopped for a DWI, the “arrest” is not entered into the National Crime Information Center (NCIC) database. No one will ever know that a DWI arrest has occurred in New Jersey, unless the Motor Vehicle Commission records are checked.

Expungement, under New Jersey law, means the “extraction and isolation” of court, jail, or law enforcement records relating to a criminal matter. NJ Rev. Stat. § 2C:52-1. This includes records of criminal investigations, arrests, detention, and criminal court proceedings. The records are not destroyed, but are removed and placed in separate storage for expunged files. The only time they might be reviewed again would be by prison administrators after a subsequent conviction. Expungement for a felony conviction is available ten years after the date of sentencing. The time period is shorter for lesser offenses. Arrests and criminal charges that never result in a conviction or other formal disposition have no waiting period before a person may petition for an expungement.

Certain offenses are ineligible for expungement. This includes convictions for violent crimes like murder, kidnapping, aggravated sexual assault, robbery, and child endangerment. NJ Rev. Stat. § 2C:52-2(b). Records of drug convictions are ineligible for expungement if the offense involved more than a specified amount of the drug. Convictions involving official corruption also may not be expunged. New Jersey law also specifically omits motor vehicle offenses from expungement eligibility, and it applies this to DWI arrests as well as convictions. NJ Rev. Stat. § 2C:52-28. An arrest for alleged DWI that does not result in a conviction therefore cannot be expunged, but an arrest for a violent felony without a conviction potentially could be. Continue reading

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The New Jersey Superior Court, Appellate Division considered the appeal of a DWI defendant in State v. Lobo that challenged the admissibility of Alcotest results. The defendant argued in part that the state’s failure to provide him with complete repair and maintenance records for the device used to test his blood alcohol content (BAC) entitled him to relief on appeal. The state’s case relied on results from an Alcotest device, which has been sufficiently controversial that the state plans on retiring it. The court rejected each of the defendant’s points of error and affirmed the conviction.

The defendant was arrested on April 29, 2011 after a traffic stop. At a State Police barracks, officers administered a breath test using a Dräger Alcotest 7110 MK III-C device. The test showed a BAC of 0.13 percent, and the defendant was charged with DWI. The court ordered the state to produce repair records and other information regarding the Alcotest device. Prosecutors later informed the court that some repair records were not available, leading the court to modify its order to require production of “repair records that exist.”

Based on the information obtained about the device, the defendant moved to dismiss the case or exclude the Alcotest results on multiple grounds. The trial court denied the defendant’s motion. The defendant entered a conditional guilty plea, which allowed him to preserve the issues raised in his motion to dismiss for appeal. Continue reading

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A series of errors by a private laboratory testing company has called hundreds of pending DWI cases into question. Blood samples sent to the lab were reportedly mislabeled, or were subject to other paperwork errors, resulting in uncertain test results. Prosecutors are trying to determine whether retesting is possible, while DWI defendants and their advocates remain skeptical that the state has revealed all of the damage done by the lab’s errors. Laws defining the offense of DWI generally do not require evidence of blood alcohol content (BAC) obtained through blood or breath testing, but chemical evidence is generally considered the simplest way for prosecutors to prove intoxication.

The district attorney’s office in San Antonio, Texas contracted with the laboratory, which is located in the Dallas/Fort Worth area, to test samples taken by police in DWI cases. The lab reportedly sent a letter to the DA’s office in May 2014 informing it that an analyst had made multiple errors in paperwork affecting hundreds of samples. The DA’s office has reportedly not made the full extent of the errors public, but one error by the analyst, who has been terminated by the lab, involved incorrect labeling of 350 samples.

The lab has reportedly sent test results to the DA’s office with notices that they cannot definitively link the results to a specific sample, although the DA’s office has denied that results have actually been mixed up between cases. The office has also denied that any samples were contaminated by the lab, although news media have reported that some documents make reference to contaminated equipment. The situation has left both prosecutors and criminal defense attorneys uncertain how to proceed with pending DWI cases. Continue reading

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The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right to a speedy trial. If this right is denied, the court may dismiss the charges. The New Jersey Supreme Court considered this issue in New Jersey v. Cahill, ruling in early April 2013 that a sixteen-month wait for a DWI trial in municipal court denied the defendant’s right to a speedy trial. Applying a four-part test developed by the U.S. Supreme Court in 1972 in Barker v. Wingo, the court affirmed the dismissal of the DWI charge.

The defendant was ticketed on October 27, 2007 for driving while intoxicated and other motor vehicle charges. Six months later, on April 10, 2008, a grand jury indicted him for fourth-degree assault by auto. The defendant pleaded guilty to the assault by auto charge in Camden County Superior Court on September 19, 2008. A judge sentenced him to one year of probation, plus fines and other penalties, on November 14, 2008.

That same day, the Camden County prosecutor sent written notice to the Pennsauken Municipal Court administrator that the Superior Court was remanding the October 2007 motor vehicle tickets to the municipal court, and that the defendant had waived double jeopardy. The municipal court notified the defendant in March 2010 that it had set the DWI and other motor vehicle charges for trial on April 12, 2010. This date was sixteen months after notice of remand was sent to the municipal court, and almost twenty-nine months after the date of the tickets. Continue reading

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As a New Jersey DWI lawyer, my goal is always to do the best job for my client, which means seeking to get the DWI dismissed. If that cannot be accomplished based on the circumstances of the case, then the next goal is to seek a reduction of the suspension time.

In first offense DWI cases in New Jersey, there is a two tiered sentencing structure.

If your breath or blood alcohol result was 0.10% or greater, then you are an alleged second-tier offender. This means, that if convicted, you face a license suspension of 7 to 12 months. If your breath breath or blood alcohol result was 0.15% or higher, then you are also subject to mandatory installation of an ignition interlock device.

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A New Jersey DWI charge is very serious and has significant consequences if you are convicted. As a result, your defense must be thoroughly planned and executed to obtain the best results possible.

It is always the goal of the qualified DWI defense attorney to attempt to have a DWI charge dismissed. The success of having the DWI dismissed, of course, depends on the specific facts and circumstances of the case and the overall situation.

Your DWI lawyer must always be ready to go to trial in your case. That doesn’t mean that your case will end up in trial, however if your lawyer is ready to actually try your case, the prosecutor, police officer, and judge may look at your circumstances differently.

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New Jersey DWI breath testing is not reliable and should be challenged by a qualified DWI lawyer.

“So, what you’re telling us is that the world is round, even though we all believe it is flat.” That is essentially what the judge said, who handled the original scientific reliability hearing in State v. Chun. This encapsulates the system’s view of breath testing in New Jersey and the world.

Breath testing has been demonstrated by scientific experts in the field to be up to 100% inaccurate. However, courts across the country have accepted the “forensic science” of breath testing, and have allowed this mechanism to be utilized to wrongly convict people of DWI. Many scholars have written on the subject, and those articles are available for review.

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I just finished meeting with a NJ DWI client, prepping him for a potential trial. The client said to me that when he chose my law firm, he had spoken with other attorneys trying to decide which law firm was best for him. He wanted to know whether I was going to “show him the beef, and not just the sizzle”. I looked quizzically at him, and asked him what that meant.

He told me that when researching my firm and discussing his options with the other lawyers he was interviewing, one lawyer had the nerve to say that the “high-priced lawyers are all sizzle and no beef”. The lawyer went on to say that he could do the same job that the more expensive lawyers do at half the cost.

During the balance of the prep time, we discussed “the beef”. We discussed how I will defend his case at trial, how I will not back down, and how I will fight for him until the very end. That “sizzle” is the beef. When hiring a lawyer, the client must be certain that that lawyer and law firm will follow through on his or her behalf. In other words, the potential client must make sure that the lawyer and law firm will fight all the way and try a case. You may not end up a trial, but you want to make sure that the lawyer you hire is preparing your case as if it will go to trial. That is the best way to assure that your case is prepped properly and fought fully.

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