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Drivers in New Jersey are obligated by state law to provide breath samples to police when they suspect driving while intoxicated (DWI). Police throughout the state use a device known as the Alcotest to determine a driver’s blood alcohol content (BAC). We were involved in a case before the New Jersey Supreme Court in 2008, State v. Chun, which resulted in detailed rules for the use and maintenance of Alcotest devices. This includes a requirement of two separate breath tests. The New Jersey Appellate Division considered an appeal last fall from a DWI defendant who argued that the police did not follow the requirements set out in Chun. The court’s ruling addresses how precise police must be with regard to waiting between breath tests.

Prosecutors can prove, for the purposes of the DWI statute, that a defendant was under the influence of alcohol by presenting evidence of BAC at or above 0.08 percent. State law requires drivers to submit to breath testing, viewing the act of driving on New Jersey roads as giving implied consent. Refusal to provide breath samples upon request by police is a separate motor vehicle offense, punishable by a fine and driver’s license suspension.

The New Jersey Supreme Court’s ruling in Chun addressed numerous concerns about the Alcotest device’s accuracy and reliability. The court found that police must collect at least two samples, by which the driver exhales into a tube connected to the device. A special master appointed by the court noted the potential for contamination during the time between a driver submits their first breath sample and their second. To account for this, the device’s software locks everything down for two minutes to give the machine time to clear out the first breath sample.

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A person charged with driving while intoxicated (DWI) in New Jersey might decide to plead guilty, instead of going to trial. Regardless of why they make that decision, the court must follow procedures set by state law that ensure protection of the defendant’s rights. This includes a conversation between the defendant and the judge, known as the “plea colloquy,” in which the judge determines the legal validity of the guilty plea by asking the defendant questions and advising them of their rights under state law, the New Jersey Constitution, and the U.S. Constitution. If the information obtained during the plea colloquy does not meet the standard set by the New Jersey Rules of Court, the plea could be ruled invalid. The Appellate Division reached this conclusion in a decision issued in late 2020, finding that the judge never asked the defendant to acknowledge certain key facts of the prosecution’s case.

State law defines DWI in two ways. Both definitions involve operation of a motor vehicle while impaired by alcohol or drugs. If the state can prove that a defendant had blood alcohol concentration (BAC) of at least 0.08 percent while they were driving, or soon afterwards, this is considered evidence of legal impairment. Without BAC evidence, prosecutors must prove impairment through other evidence, such as testimony from an arresting officer about the defendant’s driving, behavior, or appearance.

Rule 7:6-2(a)(1) governs guilty pleas in municipal court cases, including New Jersey DWI cases. A municipal court judge cannot accept a guilty plea without conducting a plea colloquy to determine that the defendant is making the plea voluntarily, that they have an “understanding of the nature of the charge and the consequences of the plea,” and that they acknowledge the “factual basis for the plea.” The judge can establish each of these by asking the defendant questions. If the judge is not satisfied that the defendant meets these criteria, they should not accept the defendant’s guilty plea.

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New Jersey’s driving while intoxicated (DWI) statute gives prosecutors two methods of establishing that a defendant was too impaired to operate a vehicle legally. They can introduce evidence indicating that the defendant’s behavior and appearance at or near the time they were driving were consistent with intoxication due to alcohol or drugs. Prosecutors may also prove intoxication by showing that a defendant’s blood alcohol content (BAC) was above a certain level. What is BAC, though? Simply put, it is a measurement of how much alcohol is present in a person’s body. How police measure BAC is often a matter of controversy, so a New Jersey DWI attorney’s knowledge of how state law uses BAC is important to understanding how to defend against DWI charges.

BAC in New Jersey DWI Law

The DWI statute defines the offense as either:
1. Driving “while under the influence of” drugs or alcohol; or
2. Driving with BAC of at least 0.08 percent.
With evidence that a defendant had BAC of 0.08 percent or more, the state does not necessarily have to provide evidence of extrinsic details like bloodshot eyes or the odor of alcohol. New Jersey law presumes that a person was intoxicated, and therefore unable to drive, when their BAC was above the “legal limit.” This is often known as per se DWI.

State law requires every driver to submit to breath testing to determine BAC, and makes refusal a separate motor vehicle offense. A defendant can challenge the admissibility of the state’s BAC evidence based on a 2008 decision by the New Jersey Supreme Court, which established procedures that police must follow to calibrate and maintain the Alcotest devices used to perform breath tests.

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A conviction for driving while intoxicated (DWI) in New Jersey can result in a range of penalties, including driver’s license suspension, a fine, use of an ignition interlock device (IID), and possibly even jail time. Under New Jersey law, DWI is classified as a motor vehicle offense rather than a criminal offense. This means that municipal courts hear DWI cases, and the maximum penalties for a conviction are less than they would be in many criminal cases. This is not to say, however, that a DWI conviction is not a very serious matter. Since municipal courts hear most cases involving motor vehicle offenses, a defendant charged with DWI might face charges of other motor vehicle offenses as well. Prosecutors might, in some cases, be willing to dismiss the DWI charge in exchange for a guilty plea to a different offense. This is not always an option, but it can be a way to avoid the more onerous penalties that might come with a New Jersey DWI conviction.

Unlike many other motor vehicle offenses in New Jersey, the penalties for DWI increase based on the number of prior convictions an individual has during the ten years before the current alleged offense. A first DWI conviction, with relatively low blood alcohol content, results in a fine of $250 to $400, possible jail time of up to thirty days, and suspension of one’s driver’s license until they install an IID in their vehicle. A third or subsequent conviction within ten years results in a mandatory jail sentence of 180 days, an eight-year license suspension, and a $1,000 fine.

Many DWI cases originate with a traffic stop by police. An officer must have reasonable suspicion of a motor vehicle or criminal offense in order to stop someone. This could include allegedly running a stop sign or a red light or driving erratically. In such cases, the state might charge a defendant not only with DWI, but also with whatever alleged motor vehicle offense or offenses prompted the traffic stop in the first place. In most cases, the potential penalties for other motor vehicle offenses are not as severe as they are for DWI.

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The law behind driving while intoxicated (DWI) in New Jersey is more complicated than it might appear at first glance. Multiple court decisions interpreting the DWI statute have held that prosecutors do not have to provide direct evidence that a person was driving. They only need to prove that a person had both the intent and the opportunity to drive while impaired by alcohol. The New Jersey Superior Court, Appellate Division affirmed this view of the DWI statute in a February ruling. It denied the appeal of a defendant who was convicted after police found him sleeping in his car with the engine running. This is an important decision for both DWI lawyers and the general public.

New Jersey’s DWI statute establishes a two-part definition of the offense. The state must prove that a defendant (1) operated a vehicle (2) while impaired by drugs or alcohol. Prosecutors can prove the second point in several ways, including evidence of blood alcohol content (BAC) and eyewitness testimony from police about the defendant’s appearance and behavior. Much discussion of DWI defenses focuses on how the state proves impairment. Maybe the police failed to maintain the Alcotest device adequately, and the BAC evidence should be thrown out. Perhaps the officer who pulled a defendant over lacked a legal justification for the stop. Sometimes, however, defendants dispute the first element of the offense.

As the Appellate Division notes in its February decision, New Jersey courts have taken a broad view of what it means to “operate” a vehicle. In a 1987 decision, the New Jersey Supreme Court stated that “a pragmatic definition of this term is necessary” in order to fulfill the purpose of the DWI statute, which is “to deal with the risk that intoxicated drivers will cause harm to themselves and to others.” The court found that intoxicated drivers can pose this sort of risk “even before [they] may have put [their] car in motion.” It cited a 1963 decision, in which it held that “a person may be “operating” a motor vehicle…even when the vehicle has not been moved.”

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New Jersey’s court system slowed to a near-halt in March 2020, along with much of New Jersey’s economy, in an effort to fight the spread of the novel coronavirus and the illness it causes, COVID-19. Municipal courts, which hear New Jersey DWI cases, began to resume certain proceedings in April. They have been conducting most matters remotely via telephone or videoconferencing technology since May. Under a plan issued by the New Jersey Supreme Court, this has been known as “Phase 1.” The court has announced that Phase 2 will begin on Monday, June 22. While municipal courts will continue to handle most matters remotely, they will be able to hold DWI trials and other matters in person, subject to social distancing and other public health guidelines.

DWI Trials in Municipal Court

DWI is not a criminal offense under New Jersey law. It is considered a motor vehicle offense. The penalties for a DWI are relatively minor when compared to various criminal offenses, with a maximum jail sentence of 180 days and a maximum fine of $1,000 for a third or subsequent offense. At the same time, the full range of procedures and constitutional protections available in criminal prosecutions do not apply to DWI cases.

The main difference is the nature of trials in DWI cases. Municipal courts have original jurisdiction over all DWI prosecutions, and defendants are not entitled to a trial by jury. A municipal judge will hear the case, render a verdict, and decide on a sentence.

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New Jersey prosecutors can use evidence of blood alcohol content (BAC) to prove that a person committed the offense of driving while intoxicated (DWI). Under state law, driving a vehicle on a public road implies consent to breath testing to determine BAC. Refusal to submit to breath testing is a separate motor vehicle offense. Law enforcement began using a device known as the Alcotest in 2005, and it is now the standard device throughout the state for BAC testing. Police must follow specific procedures regarding maintenance and calibration of these devices, as set forth in a 2008 ruling by the New Jersey Supreme Court. A decision by the court in late 2018 called over 20,000 New Jersey DWI cases into question based on falsified maintenance records. In June 2019, the Appellate Division cited that decision when it voided the conviction in one of the affected cases. If you have been stopped in New Jersey and asked to submit to breath testing, it is important that you contact a New Jersey DWI attorney as soon as possible to protect your rights under the law.

Under New Jersey law, BAC of 0.08 percent or higher creates a presumption that a person was under the influence of alcohol. This is known as per se DWI. Prosecutors can also establish that a person was impaired by alcohol through the “observational method.” This typically involves police officers’ testimony about their observations of a defendant’s appearance, behavior, and performance on field sobriety tests.

The New Jersey Supreme Court’s 2008 ruling established procedures for calibrating the Alcotest device, which requires careful maintenance to ensure accurate results. Police must calibrate the devices on a regular basis, and must follow standards set by the National Institute of Standards and Technology (NIST) when doing so. They must keep records of these calibrations, and must introduce those records as evidence along with BAC test results in DWI cases.

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Much of New Jersey is currently shut down because of the global COVID-19 pandemic, which has hit this state particularly hard. In some ways, this has slowed enforcement of driving while intoxicated (DWI) laws, but in other ways, New Jersey police are even more on alert. Municipal courts across the state remain closed under an order from the New Jersey Supreme Court, so any pending or new cases must wait for court dates. The governor’s emergency orders, on the other hand, require people to limit their movement and interactions with others, in the hopes of slowing the spread of the virus. Police are on the lookout for violators. Recent news coverage of arrests during the coronavirus lockdown has also shown how DWI enforcement can involve both criminal and motor vehicle laws.

DWI During a Lockdown

The New Jersey DWI statute defines the offense as operating a motor vehicle while under the influence of alcohol or drugs, or while one has blood alcohol content (BAC) of 0.08 percent or higher. Police can pull drivers over if they have reasonable suspicion that they have committed a traffic offense, such as running a stop sign, failing to use a turn signal, or driving erratically. If additional evidence leads them to suspect DWI, such as the odor of alcohol or the driver’s appearance or behavior, they may conduct a further investigation. This could include field sobriety tests or breath testing to determine BAC.

The executive orders issued by the governor in response to the coronavirus pandemic have given police in New Jersey additional justifications for pulling over drivers. It is too early to know if this will lead to more DWI arrests, but it is a possibility. On March 21, 2020, the governor issued Executive Order 107, which instructs “all New Jersey residents [to] remain home or at their place of residence” unless they are performing essential tasks like going to work, seeking medical attention, or going to the grocery store. State law allows law enforcement to penalize violations of this order as a disorderly persons offense.

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The Fourth and Fifth Amendments to the U.S. Constitution protect people against misconduct by police and prosecutors. In cases of suspected driving while intoxicated (DWI), New Jersey police are bound by various decisions of the U.S. and New Jersey Supreme Courts that apply these constitutional rights. Police cannot stop a person’s vehicle, for example, unless they have reasonable suspicion of DWI or other unlawful activity, or as part of an established temporary DWI checkpoint. A decision issued by the New Jersey Superior Court, Appellate Division in September 2019 addressed a different situation, which is less common in DWI cases. Police entered the defendant’s home, questioned him there, and then arrested him for DWI. The court considered whether this violated his rights under the Fourth or Fifth Amendments.

New Jersey’s DWI statute provides prosecutors with two ways to prove that a defendant was under the influence of alcohol or other drugs. If breath, blood, or urine testing shows blood alcohol concentration (BAC) of 0.08 percent or higher, state law presumes the person to be intoxicated. Even without BAC evidence, though, police and others can testify about their observations of a defendant’s appearance, odor, and behavior, to establish intoxication.

The Fourth Amendment requires police to obtain search warrants based on probable cause. Courts have identified numerous exceptions that allow police to enter private property and conduct searches without a warrant. They must be able to convince a judge that the search fits within an identified exception. The Fifth Amendment guarantees the right against self-incrimination. Police cannot coerce a person to confess to a crime, and prosecutors cannot compel a person to implicate themselves. A defendant can challenge the constitutionality of a search or arrest by filing a motion to suppress evidence. If a judge finds a violation of constitutional rights, any evidence obtained as a result is suppressed, meaning prosecutors cannot use it at trial.

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The device used for breath testing by New Jersey police in investigations of suspected driving while intoxicated (DWI), known as the Alcotest, has come under significant scrutiny several times in recent years. In order to ensure the accuracy of the results produced by the device, police must perform regular maintenance and calibration. Our New Jersey DWI lawyers were involved in a case before the New Jersey Supreme Court in 2008 that produced a set of procedures police must follow for Alcotest results to be admissible in court, including standards for device maintenance and calibration. Starting in 2016, allegations of misconduct by a police sergeant in charge of maintaining Alcotest devices in five counties called over 20,000 DWI cases into question. In July 2019, the New Jersey Supreme Court announced that a four-judge panel would review those cases, and could grant post-conviction relief (PCR) when appropriate.

New Jersey’s DWI statute allows prosecutors to prove that a defendant was impaired with evidence of blood alcohol content (BAC). A BAC of 0.08 percent or higher creates a presumption of intoxication. Police throughout the state use the Alcotest to perform breath tests on DWI suspects. In State v. Chun, the state supreme court addressed concerns about the Alcotest’s accuracy and reliability. Its 2008 decision in that case requires police to follow specific calibration procedures, and to document routine performance of those procedures. Prosecutors seeking to prove DWI with BAC evidence must produce the most recent maintenance report predating the use of a device by a defendant.

A 2016 indictment against a former sergeant with the New Jersey State Police accused him of filing false Alcotest maintenance reports for devices in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. An investigation found that 20,667 DWI cases from 2008 to 2016 relied on devices with potentially false documentation. The state supreme court appointed a special master to review the matter. The special master issued an order in November 2017 staying all cases involving potentially-affected Alcotest machines. Her investigation found that the falsified records called a substantial number of DWI cases into question. The state supreme court affirmed this report in a November 2018 ruling.

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