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New Jersey’s driving while intoxicated (DWI) statute is not limited to alleged driving while under the influence of alcohol. The law only provides an actual metric for how much alcohol may be present in someone’s system before they are presumed to be legally impaired. For cases involving alleged impairment by other substances, New Jersey prosecutors often rely on drug recognition experts (DREs), law enforcement officers who have received training that purports to help them identify the effects of particular drugs on individuals. After a DWI defendant challenged the admissibility of DRE evidence, the New Jersey Supreme Court appointed a special master to assess each step in the procedure used by DREs. Evan Levow is representing the DUI Defense Lawyers Association (DUIDLA) in the case. A hearing began in early October 2021, in which the special master is hearing testimony regarding the scientific reliability of DREs. With New Jersey moving towards the legalization of recreational cannabis, the outcome of this case is likely to have a far-reaching impact.

In addition to alcohol, the DWI statute includes “narcotic[s], [and] hallucinogenic or habit-producing drug[s]” as substances that can cause impairment. A driver with blood alcohol content (BAC) of 0.08 percent or more is subject to a presumption of impairment. The statute does not specify actual amounts of any other substance. Instead, prosecutors must introduce eyewitness testimony about a defendant’s behavior to prove that they were too impaired to drive. DREs arose as a way for the state to meet its burden of proving impairment.

DREs receive training and certification based on the Drug Recognition and Classification Program (DEC), which is operated by the International Association of Chiefs of Police and the National Highway Transportation Safety Administration. The DEC protocol involves a twelve-step process that DREs use to evaluate individuals suspected of driving under the influence of drugs (DUID). The process begins with BAC testing, and includes field sobriety tests and various other examinations. Toxicology testing is the last step in the process.

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Driving while intoxicated (DWI) is a serious offense under New Jersey law. A conviction can result in a fine, driver’s license suspension, jail time, and other penalties, depending on various factors. DWI attorneys work hard to make sure the state follows the law and respects their clients’ rights. If a case goes to trial, and the court convicts the defendant of DWI, they may still be able to keep fighting the charges by filing an appeal. New Jersey law requires a defendant appealing a DWI conviction, also known as the “appellant,” to cite specific grounds for the appeal. It is not enough that the appellant is not happy with the outcome of the trial. They must show that the court made an error, or that the process was flawed.

Appeals Based on the Evidence

In any DWI case, the prosecution has the burden of proving the defendant’s guilt beyond a reasonable doubt. This is the strictest burden of proof in our legal system. A prosecutor’s job is supposed to be difficult, since success for a prosecutor could mean a loss of freedom for a defendant.

A DWI appellant can argue that the state did not produce enough evidence to support a guilty verdict. Prosecutors must have evidence of guilt beyond a reasonable doubt for every element of the offense. A Law Division court, which hears appeals of DWI verdicts from municipal courts, could find that the state’s evidence was insufficient to meet the prosecutor’s burden of proof.
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In New Jersey, driving while intoxicated (DWI) is a serious offense that can carry significant penalties. A DWI defense attorney’s job is to advocate for and protect their client’s rights with both prosecutors and the court. Often, we are able to get a DWI charge reduced to something less serious, or even dismissed altogether. A conviction is not necessarily the end of a case, though. A defendant who has been convicted of DWI might have several options for continuing to fight for their rights.

How DWI Convictions Happen

Before discussing a DWI defendant’s options after a conviction, it is important to understand how convictions occur. In New Jersey DWI cases, a conviction can happen when:
– A defendant pleads guilty; or
– A municipal court judge finds the defendant guilty after a trial.
A defendant can enter a conditional guilty plea, which allows them to appeal the verdict on certain grounds.

Post-Conviction Relief

Appealing a conviction is not the only way to continue fighting. Post-conviction relief (PCR) gives defendants an opportunity to challenge a conviction in the same municipal court that found them guilty.
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In any case involving alleged driving while intoxicated (DWI) in a New Jersey municipal court, the state must prove the defendant’s guilt beyond a reasonable doubt. The New Jersey Rules of Evidence establish what kinds of evidence courts may consider, and what attorneys must do to get their evidence admitted. Testimony from various witnesses occurs in every trial. An important limitation on testimony during a trial is known as the “hearsay rule.” You may have heard this term if you watch any lawyer shows on television. What does the hearsay rule actually do, though? The following is an overview of the hearsay rule, and how it can help both sides in different ways in New Jersey DWI cases.

Evidence in New Jersey DWI Cases

New Jersey’s DWI statute allows prosecutors to prove that a defendant was impaired by alcohol or drugs in two ways. Both require testimony.

The state can have the arresting officer testify under oath about the defendant’s behavior or appearance at the time of their arrest. Perhaps, for example, the defendant was slurring their speech, or had bloodshot eyes.
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New Jersey’s laws dealing with the offense of driving while intoxicated (DWI) say a great deal about impairment by alcohol, but far less about impairment by other substances. The statute makes it a motor vehicle offense to drive “while under the influence” of alcohol, with blood alcohol concentration (BAC) of 0.08 percent, or while under the influence of a “narcotic, hallucinogenic or habit-producing drug.” This last category is ill-defined, especially when compared to the vast body of law dealing with alcohol. New Jersey courts may accept testimony regarding impairment by drugs even in the absence of evidence of any specific drug in a sufficient amount to cause impairment. Understanding how New Jersey law deals with “drugged driving” is critical to mounting a defense.

State law identifies two types of DWI involving alcohol. Operating a vehicle while “under the influence of alcohol” constitutes DWI, but requires the state to prove the existence of alcohol’s “influence” over a defendant. If a defendant had BAC of 0.08 percent or more, state law presumes that they were under the influence. This is known as DWI per se. Courts have developed an extensive set of rules surrounding DWI allegedly caused by alcohol, especially when breath testing is involved.

We were part of a landmark 2008 decision by the New Jersey Supreme Court, State v. Chun, which established procedures and requirements for the admissibility of BAC evidence obtained from breath testing. It addressed the breath-testing device used by law enforcement around the state, known as the Alcotest. The state supreme court has reiterated the importance of the procedures set forth in Chun. In a 2015 decision, for example, it stated that any finding of guilt in a DWI per se case “is subject to proof of the Alcotest’s reliability.”
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Police and prosecutors can use blood alcohol content (BAC) evidence to prove that a defendant charged with driving while intoxicated (DWI) in New Jersey was under the influence of alcohol. State law presumes that a person was too impaired to drive safely if their BAC was 0.08 percent or higher. Evidence of BAC at or above this “legal limit” does not automatically mean, however, that the state has met its burden of proving guilt. When police are not able to conduct breath testing for BAC, such as when a driver suspected of DWI must go to the hospital after an accident, they might test a sample of the person’s blood instead. Blood testing presents different challenges for police, and opportunities for defendants to dispute the evidence against them.

Breath vs. Blood Testing

The New Jersey DWI statute uses very broad language to define the offense and state what kind of evidence the state may use to prove that a person was “under the influence of” alcohol. State and federal courts have filled in many details regarding the collection of breath, blood, or urine samples to test for BAC. Police throughout New Jersey use a device called the Alcotest to test breath samples at police stations. The device analyzes the breath sample and reports results in a few moments.

A medical professional must draw a blood sample for BAC testing. This usually occurs at a hospital. The sample must then be transported to a laboratory. Prosecutors must show a clear chain of custody for the sample, and they must be able to establish that no contamination occurred at any point.
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New Jersey prosecutors can prove guilt in driving while intoxicated (DWI) cases by presenting evidence showing beyond a reasonable doubt that a person was impaired by alcohol or drugs while operating a vehicle. They can also prove guilt, at least with regard to impairment by alcohol, by showing that a person’s blood alcohol content (BAC) was at least 0.08 percent. Police can measure BAC using samples of a person’s breath or blood. For drugs other than alcohol, they must test blood or urine. Drug testing is far from a settled science, and false positives still occur quite often. DWI defense in New Jersey requires careful examination of evidence that supposedly shows positive drug test results or BAC above the “legal limit” of 0.08 percent.

State law requires drivers to submit breath samples for BAC testing. Anyone driving on New Jersey’s public roads is considered to have consented to breath testing. Refusal to submit breath samples is a motor vehicle offense that could be charged along with DWI. Blood and urine samples still require either a search warrant or a driver’s consent.

Police in New Jersey use a device known as the Alcotest to test breath samples for BAC. Unlike blood or urine samples, breath samples cannot be stored for later testing. The Alcotest is therefore designed to perform tests at police stations, not laboratories. A person blows into a tube, and the device subjects the breath sample to chemical reactions. The device requires frequent maintenance and careful calibration.
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A person convicted of driving while intoxicated (DWI) in New Jersey can file a petition for post-conviction relief (PCR). If successful, this will result in the court reopening the case. Since DWI is a motor vehicle offense instead of a criminal offense under New Jersey law, a petition for PCR is filed in the municipal court that originally heard the case. A PCR petition in a criminal case is filed in the Superior Court, Law Division. The New Jersey Appellate Division recently ruled on an appeal of a denial of PCR in a case involving criminal driving while license suspended (DWLS), which is a charge that can follow a DWI conviction. The court vacated the Law Division’s ruling and sent it back for an evidentiary hearing.

New Jersey DWI convictions result in license suspension, with the length of the suspension depending on several factors. A person with no prior DWI convictions in the past ten years, and whose blood alcohol content was less than 0.10 percent, will receive the shortest period of license suspension, equal to the length of time needed for the person to install an ignition interlock device in their car. The longest license suspension period, eight years, comes with a third DWI conviction within the span of a decade.

In most cases, DWLS is a motor vehicle offense. Penalties may include a fine, a brief jail sentence, revocation of one’s motor vehicle registration, and an extension of the driver’s license suspension. Criminal DWLS occurs when a person drives during a period of license suspension that is the result of:
– A first DWI conviction, and the person has a prior DWLS conviction; or
– A second or subsequent DWI conviction.
A conviction of criminal DWLS carries a mandatory jail sentence of 180 days.
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Under New Jersey law, driving while intoxicated (DWI) is a motor vehicle offense that can result in driver’s license suspension, a fine, and a jail sentence. A court may also order someone convicted of DWI to have an ignition interlock device (IID) installed in their vehicle at their own expense. In 2019, the New Jersey Legislature made several changes to the DWI statute. These include modifying the period of driver’s license suspension and making IID use mandatory. The new law took effect at the beginning of December 2019.

Prior DWI Law

Before the new law took effect, New Jersey identified four levels of DWI, based primarily on the number of prior offenses in the ten years preceding the current charge:
1. First DWI offense, with blood alcohol content (BAC) of at least 0.08 but less than 0.10 percent;
2. First DWI offense, with BAC of 0.10 percent or higher;
3. Second DWI offense, regardless of BAC; and
4. Third or subsequent DWI offense.

License suspensions ranged from ninety days for the lowest-level DWI offense, to ten years for the highest. Judges had discretion to order installation of an IID for most first offenses, but it was mandatory for subsequent convictions.

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New Jersey’s driving while intoxicated (DWI) laws apply to everyone who drives on this state’s public roadways, regardless of whether they reside in New Jersey or have a driver’s license issued here. A driver from New York, Pennsylvania, Delaware, or any other state is subject to all of New Jersey’s traffic laws and most of the penalties. A recent decision by the New Jersey Appellate Division addressed a defendant’s claim that this state’s requirement of an ignition interlock device (IID) should not apply to him since his driver’s license is not from New Jersey. The court denied this claim. In doing so, it examined how New Jersey’s DWI laws apply to people from outside the state.

The penalties for a DWI conviction in New Jersey vary based on the number of prior convictions someone has had during the preceding decade. For a first-time conviction or the first conviction in more than a decade, the penalties may vary based on a person’s blood alcohol content. New Jersey also makes it a motor vehicle offense to refuse to submit to breath testing when a law enforcement officer suspects DWI. Penalties for a second, third, or subsequent refusal conviction are harsher than those for a first conviction. Under recent amendments to state law, installation of an ignition interlock device (IID) is required for all DWI and refusal convictions.

A conviction for DWI or refusal results in a period of driver’s license suspension. Driver’s licenses are a function of state law. The New Jersey Legislature cannot authorize license suspension for someone from another state who is convicted of DWI or refusal in New Jersey if they do not have a license issued by New Jersey. The state can, however, revoke a person’s driving privileges in this state. This state is a member of the Driver License Compact (DLC), which is an agreement among states to exchange information about motor vehicle offenses and to enforce penalties for out-of-state convictions. Under the points system used by the New Jersey Motor Vehicle Commission, for example, an out-of-state moving violation results in two points.
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