New Jersey DWI Attorney Blog

May 26, 2011

Speedy Trial Issues in New Jersey DWI Cases

New Jersey DWI cases are subject to the sixty day guideline for case resolution in the New Jersey Municipal Court system. However, it is extremely difficult, if not unlikely to resolve a contested DWI in that amount of time.

The guideline is just that — a guideline. It is not a requirement, and courts are supposed to be fairly liberal in their interpretation of the rule. Some courts are very strict and press the case forward to the detriment of the State or the defendant, but this is rare, as the courts understand that the cases are supposed to be decided on their merits rather than a calendar. However, if the 60 days have passed and there is an unwarranted delay, the court should move the case forward. In all circumstances, the defendant’s constitutional rights must always be considered and protected.

Once discovery (police records, video, etc.) has been requested, it must be provided on an expeditious basis. Often, while some discovery is provided, not everything that is requested or required is given. In that situation, one of the primary ways to enforce defendant’s rights is to file a Motion to Compel Discovery. Once the court enters an order compelling the State to provide discovery by a date certain, if the material is not provided by that date, a Motion to Dismiss for failure to supply the court ordered discovery should be filed.

May 12, 2011

New Jersey DWI Car Stop Based on a “Tip Call”

by Evan M. Levow

Most New Jersey DWI automobile stops occur when a police officer has personally viewed a traffic violation. The officer then reports the violation in his or her report, and this is then the subject of scrutiny as to whether the officer had the requisite “reasonable articulable suspicion of criminal activity” required to make a stop based on constitutional law, i.e. the Fourth Amendment.

More and more, since almost everyone has a cell phone with them on the road, stops are often being made based on citizen tips — other drivers on the road who view erratic driving and dial 911 or the local police department. These are particularly interesting cases that add an additional layer to what your qualified New Jersey DWI lawyer should be doing in your case.

The law on anonymous tips, is that the tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity. The analysis has changed, however, with 911 calls. The New Jersey Supreme Court stated that a 911 caller “place[s] his anonymity at risk by virtue of using the 9-1-1 system” because the records required to be made of such calls “provide the police with an ability to trace the identity of the caller in a manner that enhances his reliability.” State v. Golotta, 178 N.J. 205, 225-26 (2003). The Court said that such a call should not be ” ‘viewed with the same degree of suspicion that applies to a tip by a confidential informant.’

April 11, 2011

Implied Consent Warnings in New Jersey DWI Cases: “But, I don’t speak English!”

by Evan M. Levow

If you are charged with refusal to submit to breath testing in a New Jersey DWI / Refusal case, but you don’t speak English well enough to understand the implied consent warning, you may have a defense to the refusal charge. Refusal convictions require proof that the officer requested that you submit to a chemical breath test and informed you of the consequences of refusing to do so. Even though motorists are deemed to have given their consent to submit to breath testing, the officer must still inform the driver of the consequences of refusal.

In a case decided by the New Jersey Supreme Court called State v. Marquez, the Court stated that the obligation to “inform” requires more than a recitation of English words to a non-English speaker. “Knowledge cannot be imparted in that way.” The officer must convey the implied consent warning in a language the person speaks or understands.

The point of the officer advising a driver of the penalties for refusal “is to impel the driver to take the test so that the State will have the evidence necessary to prosecute a DWI charge.” That aim cannot be accomplished, according to the court, by reading words in a language the motorist does not understand.

March 1, 2011

Alcotest Discovery in New Jersey DWI Cases: What Do I Need to Obtain

by Evan M. Levow

In a New Jersey DWI case, there are many documents that the State must provide you so that you can defend your case. This is called “discovery”. The discovery includes everything from the stop of your vehicle, through the roadside testing, to the breath or blood testing, and your release from police custody.

In order for the prosecutor to get Alcotest results admitted into evidence against you, the State must establish that: (1) the machine was in working order and had been inspected according to procedure; (2) the police officer who ran the testing on the machine was certified to do so; and, (3) the test was administered according to official procedure.

A significant challenge to the machine and admission of the Alcotest results is whether the machine was in “proper working order”. There are three core foundational documents that the State must admit into evidence to establish this:

February 28, 2011

New Jersey DWI Breath Testing Machine: Calibration of the Machine and Why It’s Important to Your Case

by Evan M. Levow

If you were arrested for a New Jersey DWI, and you submitted breath samples at the police station, your breath testing was done on a Draeger Alcotest 7110 MKIII-C machine. There are many components to a DWI arrest, and it is important to understand how each part can be challenged. For example, if the machine was not calibrated properly, the breath test results can be suppressed, or thrown out.

Calibrating the machine involves running several tests on it with different alcohol “simulator” solutions. The solutions must be heated to 34 degrees Celsius, plus or minus 0.2 degrees. This temperature is supposed to simulate the temperature of human breath, however, studies have demonstrated human breath to be closer to 35 degrees. This difference in temperature can cause more than 6% error in the ultimate breath test result.

Appropriate temperatures are determined using an external NIST traceable temperature probe. NIST is the National Institute of Standards and Technology, which establishes and maintains basic international standards of measurement. The temperature probe is used to ensure the proper temperature of the solutions just before the calibration of the Alcotest.

January 26, 2011

New Jersey Refusal / DWI Sentencing Issues: Prior Refusal Conviction Does Not Enhance a Later DWI Conviction — Yet

by Evan M. Levow

New Jersey Refusal / DWI law is complex, but it has just been clarified by the New Jersey Supreme Court in a case called State v. Ciancaglini, decided January 19, 2011, favoring individuals who have prior Refusal convictions who then get a subsequent DWI conviction.

The case also illustrates that lower courts can be wrong in their assessment of an issue, and appeals must be taken in order to correct the errors made and reverse the conviction or legal issue.

Ciancaglini had a prior DWI in 1979 and then a conviction for Refusal in 2006. In 2008, she was convicted of DWI, and the Municipal Court sentenced her as a third offender, based on changes in the case law from a few years earlier. She then appealed to the Law Division, which agreed with her that the law precluded the Refusal conviction to be counted against her DWI sentencing, and sentenced her as a first offender, giving her the benefit of the 10 year step down rule between her 1979 conviction and the current 2008 conviction. The State then appealed, and the Appellate Division reversed the Law Division, and held that she should be considered a third offender based on the change of law in a case called State v. Cummings.

November 18, 2010

Senseless Consequences of Drunk Driving

by Evan M. Levow

November 1, 2010

New Jersey DWI Breath Testing Discovery: Digital Data Log Download

by Evan M. Levow

New Jersey DWI breath testing cases are complex, especially due to the new machine being used in New Jersey, the Draeger Alcotest 7110 MKIII-C. While this machine has been held to be reliable by the New Jersey courts, there are still significant issues to challenge regarding the machine and overall breath testing for New Jersey DWI arrested drivers. You just have to know what to look for, and what to ask for to review, to assess your challenge to the machine and establish your defenses.

Breath test results are generally admissible in evidence when the machine is shown to be in proper working order, when the breath test is shown to have been administered by a qualified operator, and the machine was used in accordance with accepted procedures.

It is the job of the defense attorney to investigate these areas. This is done through a process called “discovery”, where the defense seeks records regarding the machine, the arrest, and anything else relevant to the arrest and defense of the case from the State. This is done through a letter request to the prosecutor, copied to the police department and the Court Administrator. Our courts have said that “inquiry regarding these facts is extremely material.” Information concerning the conditions under which the tests were held, the machine operator’s competence, the particular machine’s state of repair and identification and documentation regarding the machine used for defendant’s tests are all relevant inquiries.

October 22, 2010

Six Month Calibration Requirement for New Jersey DWI Alcotest® Machine

by Evan M. Levow

I represented the lead defendant in State v. Chun, the case that has set the standards and procedures for DWI breath testing in New Jersey. So, a recent decision in a case interpreting Chun seems particularly ironic to me, since it highlights the State’s failure to adhere to the New Jersey Supreme Court’s requirements that the State change the make-up of the Alcotest®, the new breath testing machine in New Jersey.

In March 2008, the Supreme Court ruled in Chun that the State has to calibrate the Alcotest® every six months. Prior to Chun, calibration occurred every twelve months. While the Court determined that the Alcotest® is scientifically reliable, the Court left open challenges to the operability of each Alcotest®, that is, whether the Alcotest® machine that was used to test the subject was operating properly and as expected at the time of the testing. This allows for a wide array of challenges that are possible in each New Jersey DWI case by a skilled New Jersey DWI defense attorney.

This new case from the Appellate Division, State v. McConnell, says that failure to recalibrate an Alcotest® machine within the 6 month period does not cause the readings to be automatically thrown out.

October 21, 2010

Refusal Cases in New Jersey DWI: “But, I Did Blow…”

by Evan M. Levow

When I speak with prospective clients who have been charged with Refusal to Submit to Breath Testing in a New Jersey DWI/DUI, I often hear, “How can I be charged with Refusal? I blew into the machine several times!”

If you have been charged with Refusal, and if you attempted to blow into the Alcotest®, the new breath testing machine in New Jersey DWI matters, you probably have a good defense to that charge. That’s important, because, on a first alleged offense, the suspension for Refusal is much greater than the DWI charge. On a first Refusal, the license suspension is 7 – 12 months, and the suspension on the DWI is 3 months.

Getting rid of the Refusal charge makes the DWI/DUI more defensible. Not only is there one less serious charge to defend, there is no longer an inference that you refused because you were drunk. There is actually a case that says that if you are convicted of Refusal, the judge can infer that you refused because you were, in fact, intoxicated. See State v. Tabisz.