New Jersey DWI Attorney Blog

July 18, 2011

Roadside Breath Testing in New Jersey

Police departments in many towns in New Jersey are now utilizing portable hand held breath testing devices known as preliminary breath testers, or PBT’s. A PBT can either report an actual breath test result in numerical format such as 0.08% breath alcohol, or it can simply show a positive or negative result, signifying whether alcohol is present in the breath or not.

The PBT’s are generally supposed to be used at the end of the investigation, and not as the basis to continue an investigation. The theory is that once the officer confirms the presence of alcohol, any subjective evidence collected thereafter, such as field exercises administered to the suspect and interpreted by the officer, may be tainted by the positive result on the PBT. Therefore, PBT’s are intended to be “confirmatory” devices once the officer has undertaken other subjective testing.

No one ever has to submit to a PBT roadside. The implied consent law, which states that a driver in New Jersey must submit to breath testing where an officer has reasonable suspicion that he or she is under the influence of alcohol, applies only to evidential breath testing on an approved machine, such as the Alcotest 7110 MKIII-C, which is the only approved evidential breath testing machine currently in use in New Jersey.

July 15, 2011

New Jersey DWI – Post Conviction Relief for Prior Convictions: Why Is It So Important?

by Evan M. Levow

As a New Jersey DWI defense attorney, I always review my client’s prior convictions to determine which, if any, can be overturned or to determine if the effect of the conviction can be minimized for sentencing issues in the current pending case. I have written in this blog quite a bit about New Jersey Post Conviction Relief, or PCR, practice, because it is so important in the assessment of an alleged multiple offender’s case.

A case that was recently decided by the Appellate Division in New Jersey, State v. Weil (decided July 5, 2011), outlines the PCR process and what is needed to seek relief from the courts.

Petitions for PCR must be filed in the court where the original conviction occurred. In a case called State v. Bringhurst, the Appellate Division stated that the time limit for filing a PCR petition in a DWI case could be relaxed from the general five year rule, since the prior conviction would “be of no moment unless and until there was a subsequent DWI conviction.” If the prior conviction is more than five years old, the defendant has to establish that any delay in filing was not the result of neglect or some other disqualifying reason. In relaxing the time limitation, the court will consider the extent and cause of the delay, whether there is any prejudice to the State, and the importance of the claim.

June 8, 2011

Defending a New Jersey DWI Refusal Charge after Schmidt: What’s Left?

by Evan M. Levow

There are still significant opportunities to defend New Jersey DWI Refusal charges after the New Jersey Supreme Court’s decision in State v. Schmidt on May 26, 2011. The most important thing to remember when addressing the defense of a refusal charge is, never assume that simply being charged with a refusal means that a conviction will automatically follow.

Understanding of the law and the individuals involved is key to attempting success in what appears to be a very difficult charge to defend.

Schmidt now states the general proposition that if you blew into the machine but didn’t give a complete sample that the machine “accepted”, you cannot claim that the officer should have then read you the second part of the implied consent warning as a defense to the charge. This doesn’t mean, however, that you will automatically lose your case and suffer the consequences of a refusal charge.

June 1, 2011

Insufficient New Jersey DWI Breath Samples: “I blew into the machine, but I was charged with Refusal”

by Evan M. Levow

Until May 26, 2011, there was a defense to a refusal charge that you had attempted to blow into the machine, but the machine did not register or accept the breath sample. However, this is no longer a defense.

This is how the defense worked: Implied consent warnings are eleven paragraphs of written warnings read to you by the police officer in the police station prior to the breath testing. The warning states that if you do not submit to the breath testing you will be given a separate ticket for refusal with separate penalties from a DWI conviction. If you started to give a breath sample, but for any reason were unable to give a complete sample that the machine accepted, the officer would likely have charged you with refusing to submit to the testing. However, if the officer did not read the “Additional Statement” that is printed after the eleven paragraphs, then you would claim that you were not adequately warned at that point that failure to complete the testing would result in a refusal charge.

This defense was intuitively sound, since you had not actually refused to give a breath sample, and had in fact provided a sample. The officer should have separately advised you that you would be subject to a refusal charge where you had already blown. Then, you would have been on notice to continue to attempt to blow into the machine, rather than stop, subjecting yourself to a separate suspension for refusal.

May 26, 2011

Speedy Trial Issues in New Jersey DWI Cases

by Evan M. Levow

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.