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The Fourth Amendment to the U.S. Constitution protects people from “unreasonable searches and seizures” that are not supported by probable cause. It generally requires law enforcement officers to obtain a warrant from a judge before they may conduct a search, seize property, or make an arrest. Courts have identified numerous exceptions to this requirement, however. In New Jersey driving while intoxicated (DWI) cases, drivers give their implied consent to provide breath samples to police. A blood draw, however, is considered much more intrusive, and is not covered by the implied consent law. The U.S. Supreme Court has issued several rulings over the years on the question of whether police may order blood drawn from a DWI suspect without a warrant or the suspect’s consent. A ruling from June 2019, Mitchell v. Wisconsin, involved a warrantless blood draw on a suspect who was unconscious. The court vacated the conviction and remanded the case without a clear majority ruling, but five justices were inclined to support warrantless blood draws in certain situations.

If police obtain evidence in violation of someone’s Fourth Amendment rights, that person can ask a court to prevent the use of that evidence against them at trial. This is known as a motion to suppress. The state can offer various justifications for a warrantless search. The “exigent circumstances” exception has featured prominently in DWI cases involving warrantless blood draws. This exception allows police to conduct a search or seize property without a warrant when there is a significant risk of the loss or destruction of material evidence or contraband.

The Supreme Court took up the question of whether the exigent circumstances exception applies to warrantless blood draws in 2013, in Missouri v. McNeely. In a 5-4 ruling, the court found that the breakdown of alcohol in the human body over time is not, by itself, an “exigent circumstance” justifying a warrantless blood draw. It did not, however, foreclose all possibility of an exigent circumstance exception in the future.
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New Jersey defines driving while intoxicated (DWI) in both general and specific terms. The most straightforward way for the state to prove that a defendant was too impaired to drive is to show that the defendant’s blood alcohol content (BAC) was at or above a certain level. This creates a presumption of impairment. Alcohol is not the only substance, however, that can cause impairment. While police can test samples of blood or urine for other substances, state law does not identify a specific “legal limit” of any substance besides alcohol. Police in New Jersey regularly use officers known as drug recognition experts (DREs) to testify about indications of impairment in a defendant’s appearance or behavior. Advocates for DWI defendants in New Jersey have challenged DRE testimony’s scientific reliability. The New Jersey Supreme Court is preparing to hear a DWI case that involves a direct conflict between BAC evidence and DRE testimony.

The DWI statute identifies two scenarios in which a driver commits an offense. One involves driving with a BAC of 0.08 percent or more. The other involves driving “while under the influence of” alcohol or other substances. Perhaps because DWI based on BAC is generally easier to prove, state DWI law focuses on breath testing. Drivers are required to submit breath samples for the purpose of measuring BAC. Refusal is a motor vehicle offense, separate from DWI and punishable by driver’s license suspension and a fine.

Proving that a driver was “under the influence” can be far more difficult, especially if BAC is unavailable or less than 0.08 percent. The statute does not define the term, beyond the implication that a driver must be impaired to a similar degree as one with 0.08 percent or greater BAC. Police officers may testify about their observations of a defendant’s demeanor and appearance, as well as other evidence from the scene. This testimony often includes elements like slurred speech, clumsy movements, bloodshot eyes, and the odor of alcohol. Not all “intoxicating” substances affect people the same way, though. This is supposedly where DREs come in.
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A person commits the offense of driving while intoxicated (DWI) in New Jersey when they operate a motor vehicle while impaired by alcohol or a drug. The DWI statute establishes four levels of penalties. The first two levels apply to first offenses. The remaining levels apply to second offenses and third or subsequent offenses. The New Jersey Legislature amended the statute in 1999 to add enhanced penalties for DWI offenses that occur on or near school property, or in designated crosswalks. The general offense of DWI is codified in § 39:4-50(a) of the Revised Statutes, and the school-related provisions are in subsection (g). In 2004, the New Jersey Supreme Court ruled that subsection (g) is a separate offense from subsection (a). This has created some confusion about how to determine when a prior New Jersey DWI conviction should count toward a sentencing enhancement.

Subsection (a) sets two levels of penalties for a first DWI offense. If the defendant had a BAC of more than 0.08 percent, but less than 0.10 percent, the penalties include a fine of $250 to $400, jail time of 12 to 48 hours, and a three-month driver’s license suspension. Some penalties increase if the defendant’s BAC was 0.10 percent or higher, such as a fine of $300 to $500 and a license suspension of seven months to one year. The penalties increase for a second offense, and again for a third or subsequent offense, provided that the most recent previous offense occurred no more than 10 years earlier.

The New Jersey Legislature passed Senate Bill 854 in June 1999, and it was signed into law in August of that year. Legislators named the bill “Filomena’s Law,” after a school crossing guard who was killed by a drunk driver in 1997. The bill amended numerous provisions of New Jersey law, including sections of the Code of Criminal Justice addressing vehicular homicide and other offenses. It added subsection (g) to the DWI statute, which applies when a person commits DWI on school property, within 1,000 feet of school property, in a designated school crossing, or in an area the driver knows is being used as a school crossing.

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New Jersey’s driving while intoxicated (DWI) statute sets multiple levels of penalties, primarily based on a defendant’s number of convictions within the prior decade. Enhanced penalties apply for a second offense within a ten-year period, and again for a third or subsequent offense. A 1999 amendment to the DWI statute created a separate set of penalties, found in subsection (g) of the statute, for DWI on or near school property. Uncertainty has arisen with regard to whether a conviction under one subsection should count as a prior offense in a new case under the other subsection, and how to apply the sentencing enhancements found in each subsection. Decisions from the New Jersey Supreme Court and the Appellate Division have held that the order in which the two offenses occur—(g) followed by (a), or (a) followed by (g)—is important.

The penalties for a second DWI conviction under subsection (a) include a fine of $500 to $1,000, imprisonment of forty-eight hours to ninety days, and driver’s license suspension for two years. A second offense under subsection (g) has harsher penalties: a fine of $1,000 to $2,000, imprisonment of ninety-six hours to 180 days, and a four-year license suspension. The penalties for a third or subsequent offense within ten years are also greater under subsection (g) than subsection (a).

A 2004 New Jersey Supreme Court ruling involved a defendant convicted of DWI under subsection (g), with a prior conviction under subsection (a). The municipal court applied subsection (g)’s enhanced penalties for a second offense. The Appellate Division affirmed this sentence, finding that a second DWI offense in a school zone “can be viewed as an escalating violation.”
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When the state charges a person with driving while intoxicated (DWI) in New Jersey, prosecutors have the burden of proving each element of the offense. This includes proving that police did not violate the defendant’s rights against unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution. As a general rule, police must obtain a warrant in order to conduct a search, seize property, and make an arrest, but courts have identified many exceptions. In practice, police may conduct warrantless searches in certain situations. Courts have ruled that police may briefly detain a person without a warrant, and without the “probable cause” required to obtain a warrant, when they can demonstrate “reasonable suspicion” of some sort of wrongdoing. This is a lower standard than probable cause, and the distinction can be important in defending against DWI charges in New Jersey courts.

New Jersey’s DWI statute prohibits driving while under the influence of alcohol or other substances that are likely to impair a person’s ability to operate a motor vehicle. A defendant can challenge or dispute the evidence offered by the state, but they might also be able to challenge the constitutionality of the arrest itself. Many DWI cases begin with a traffic stop, when a police officer pulls a driver over on the road. If a police officer lacked a legal justification for the stop, the court could suppress any evidence obtained as a result of the stop, or dismiss the case altogether. A defendant must move to suppress evidence obtained in violation of their Fourth Amendment rights.

The U.S. Supreme Court ruled in Terry v. Ohio in 1968 that police may detain a person briefly based on the “reasonable suspicion” standard. These are commonly known as Terry stops. The case involved a person stopped and searched by the police while on foot, but the reasonable suspicion standard has also been applied to traffic stops.
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Driving while intoxicated (DWI) can involve other substances besides alcohol. New Jersey’s DWI statute makes it an offense to drive while under the influence of a “narcotic” or “habit-producing drug.” It does not specify that the narcotic or other drug must be illegal or illicit. Certain prescription medications can significantly impair a person’s ability to perform various functions, including driving. Defending against this type of DWI charge often involves challenging the police’s determination of impairment. Even if a person legally possesses a prescription medication, and uses it exactly as instructed by their doctor, the state could still charge them with DWI. Last month, for example, New Jersey prosecutors charged a school bus driver with DWI after a minor accident in a parking lot, alleging that she was under the influence of prescription medications.

New Jersey law identifies a level of blood alcohol content (BAC) at which a person is presumed to be impaired. It does not identify specific levels of other substances. In order to prove that a defendant was under the influence of something other than alcohol, the state usually relies on eyewitness testimony about a defendant’s appearance and demeanor at the time of their arrest. Prosecutors may also offer expert testimony from officers known as “drug recognition experts,” who are purportedly trained in recognizing signs of impairment by various drugs.

Reported cases involving “prescription medication DWI” in New Jersey appear to be rare. Cases often involve combinations of substances. For example, the defendant in a 2015 New Jersey Appellate Division case, State v. Pouch-Mendola, was reportedly taking two prescription medications that acted as “central nervous system depressants.” According to the court, she admitted to “consuming alcohol to ‘enhance’ [the] effect” of the medications. The court affirmed her conviction.
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The New Jersey statute defining the offense of driving while intoxicated (DWI) allows the state to prove impairment by substances other than alcohol. At the same time, it makes it generally easier for the state to prove impairment by alcohol, partially due to the wider availability of technologies for measuring alcohol in a person’s system. The New Jersey Legislature has written the law to allow a presumption of impairment based on chemical testing for alcohol, but not other substances. A report from last year by NJ.com indicates that the rate of DWI dismissals throughout the state has increased over the past decade. It suggests that an increase in prosecutions for driving under the influence of drugs, or “drugged driving,” could be a factor. It is difficult, if not impossible, to find any single cause for a statistic like this, but it is worth noting that drugged driving is potentially more difficult for prosecutors to prove.

State law defines DWI in two ways. First, a person commits an offense if they drive “while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug.” This requires the state to prove that a defendant was impaired, or “under the influence,” through a variety of means, such as eyewitness testimony and testimony from officers trained to identify the effects of various drugs. The second type of DWI is often known as DWI per se. It only requires proof that a person drove while their blood alcohol content (BAC) was at or above 0.08 percent. State law requires anyone suspected of DWI to submit breath samples for chemical testing to determine BAC. Refusal to submit a breath sample is a separate motor vehicle offense with penalties that are almost as serious as the penalties for DWI.

Prosecutors routinely call the arresting officer or officers to testify at DWI trials. Where alcohol is allegedly involved, an officer may testify about their observations of a defendant. This may involve the odor of alcohol, or physical signs of intoxication like bloodshot or glassy eyes, slurred speech, and difficulty with balance. An officer who conducted field sobriety tests (FSTs) can offer testimony about a defendant’s performance. Even in the absence of BAC evidence, the state can offer evidence in an attempt to prove intoxication.
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New Jersey DWI law identifies multiple levels of penalties for driving while intoxicated (DWI), primarily based on the number of convictions a defendant has during the ten years prior to the current alleged offense. A third or subsequent offense includes a mandatory minimum sentence of 180 days in jail. Municipal courts in New Jersey are authorized by law to allow “periodic service” of a jail sentence, meaning that a person does not have to serve their entire sentence continuously. After a municipal court sentenced a defendant to periodic service of a mandatory 180-day sentence for DWI, prosecutors appealed. They argued that periodic service is not available for a third DWI offense. The Appellate Division agreed with the prosecutors’ argument in July 2018 in State v. Anicama.

Municipal courts in New Jersey have original jurisdiction over motor vehicle and traffic offenses, with some exceptions. The periodic service statute provides that municipal courts may allow a person to serve a jail sentence “periodically on particular days, rather than consecutively.” The person gets credit for each day spent in jail, or for fractions of days “to the nearest hour actually served.”

The penalty for a first DWI offense may vary based on a defendant’s blood alcohol content (BAC), with enhanced penalties for BAC of 0.10 percent or more. For a second offense within a ten-year period, the penalty is enhanced further regardless of BAC. A third or subsequent offense carries the greatest possible penalty, including a $1,000 fine, a minimum 180-day jail sentence, a ten-year driver’s license suspension, and mandatory use of an ignition interlock device. According to the DWI statute, a court may decrease the jail sentence by up to ninety days if the defendant completes an approved drug or alcohol inpatient treatment program.
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In prosecutions for alleged driving while intoxicated (DWI) in New Jersey, the state must prove each element of the offense beyond a reasonable doubt. Municipal court judges determine whether prosecutors have met their burden of proof when a case goes to trial. Last year, the New Jersey Appellate Division considered a defendant’s claim that a police officer’s failure to record video of her field sobriety tests (FSTs) should weigh in her favor. The court’s ruling in State v. Belko is a reminder that New Jersey gives prosecutors rather wide latitude in the types of evidence they may use in DWI cases.

The New Jersey DWI statute allows prosecutors to prove impairment by demonstrating that a defendant had blood alcohol content (BAC) of at least 0.08 percent, or by showing other evidence that they were “under the influence” of alcohol, narcotics, or other drugs. This could include a defendant’s performance on FSTs, their appearance or demeanor, or testimony from an officer trained in drug recognition.

Municipal judges must weight the credibility of eyewitness and expert testimony in DWI trials. This often requires subjective determinations of how a witness appears in court. As video recording becomes increasingly common, thanks in part to near-ubiquitous smartphones, more and more arrests and other incidents are recorded by one or more people. These videos sometimes serve to challenge the official story from one (or both) sides. Video evidence is often admissible in court, but the Belko case addressed the question of whether video evidence should be required.
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Prosecutors in New Jersey must prove every element of the offense of driving while intoxicated (DWI) beyond a reasonable doubt. In cases that rely on breath testing to establish blood alcohol content (BAC), this includes evidence that the equipment used by police met the requirements of state law. Our firm was involved in a landmark 2008 ruling by the New Jersey Supreme Court, State v. Chun, which established procedures for maintaining and calibrating the breath-testing device used by most New Jersey police departments. The court’s decision also identified a set of “foundational documents” that prosecutors must produce to establish that police have followed these procedures. In September 2018, the New Jersey Appellate Division ruled in State v. Ogden on a challenge to the foundational documents offered by the state in a DWI case.

Under the New Jersey DWI statute, BAC of 0.08 percent or above creates a presumption of impairment. State law therefore requires drivers suspected of DWI to submit a breath sample for testing by police. Most police departments around the state use a device commonly known as the Alcotest to test breath samples. These devices have been controversial because of concerns over the training of the officers administering the tests, and the accuracy of the test results. The New Jersey Supreme Court ruled in Chun that Alcotest results are admissible in court, provided that the state meets strict requirements for the maintenance of the devices and the conditions in which breath tests may be performed.

In addition to offering evidence that police followed the testing procedures established by Chun, such as a twenty-minute waiting period before a DWI suspect may submit a breath sample, police must establish that the Alcotest device had been properly calibrated and was in good working order when the defendant was tested. The court identified three “foundational documents” in Chun that prosecutors must produce:
1. The most recent calibration report for the device from before the date of the defendant’s test, which must include information on the credentials of the individual who did the calibration;
2. The most recent “new standard solution report”; and
3. The “certificate of analysis of the 0.10 simulator solution used in a defendant’s control tests.”
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