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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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Prosecutors in New Jersey may offer two types of evidence to prove guilt in driving while intoxicated (DWI) cases. First, they may introduce testimony from police officers and others who witnessed a defendant’s appearance and demeanor. This may include testimony about field sobriety tests, or testimony from officers trained as drug recognition experts. The second method allowed by the New Jersey DWI statute is evidence of blood alcohol content (BAC) of at least 0.08 percent. Most police departments in New Jersey use a device known as the Alcotest to collect breath samples and test them to determine a DWI suspect’s BAC. A landmark 2008 decision by the New Jersey Supreme Court, State v. Chun, established standards for the use of these devices in order to maximize their accuracy. One rule created by the Chun decision requires women who are over sixty years of age to provide a smaller breath sample than other people, based on findings that women at that age are generally unable to provide as much breath as their male peers. A 2013 follow-up order in the Chun case limited the state’s ability to prosecute women over the age of sixty for refusal to submit a breath sample.

New Jersey’s implied consent statute requires drivers to submit to breath testing in DWI investigations. Refusal to do so is a separate motor vehicle offense, punishable by fines and driver’s license suspension. The Alcotest requires an individual to blow into a tube connected to the device for a sustained period of time, in order to provide the 1.5 liters of air needed for the test. The individual must seal their lips around the tube so that no air escapes while they are blowing. New Jersey courts have held that an individual may be found guilty of refusal for repeatedly failing to provide an adequate breath sample, such as by failing to seal their lips around the tube or failing to blow for long enough.

Prior to the 2008 ruling in Chun, a court-appointed special master issued a report that recommended various standard procedures for administering the Alcotest. This included the 1.5-liter minimum volume of air. The special master also noted that the evidence supported a lower required volume for women older than sixty. The court reviewed research showing that, after age sixty, women’s average volume of breath was 1.4 liters. This average volume decreased by 0.1 liter every ten years afterwards. The court accepted these findings and ruled that women over the age of sixty must only provide 1.2 liters of air. It also dismissed possible objections to the two standards under the Equal Protection Clause.
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Most New Jersey police departments use a device known as the Alcotest to measure blood alcohol content (BAC) in breath samples submitted by individuals suspected of driving while intoxicated (DWI). Under New Jersey DWI law, a person with BAC of at least 0.08 percent is presumed to be legally impaired. In 2008, we were involved in a case before the New Jersey Supreme Court, State v. Chun, that established statewide procedures for calibrating and maintaining Alcotest devices and administering breath tests. In 2016, a sergeant with the New Jersey State Police was charged with allegedly falsifying Alcotest calibration records. The New Jersey Supreme Court has now effectively tossed out Alcotest results in thousands of cases involving machines under that sergeant’s supervision. The court’s decision in State v. Cassidy, issued on November 13, 2018, is likely to have a substantial impact for months to come.

The Alcotest 7110 MKIII-C requires careful calibration to ensure reliable results. The Chun ruling held that Alcotest results are admissible to establish BAC in DWI cases. It also held, however, that police must follow specific procedures to maintain and calibrate the devices, and that prosecutors must make documentation available about the maintenance and calibration of the device used in each case.

The “0.10 simulator solution” used in Alcotest control tests must be maintained within a specific temperature range. Chun requires measurement of this temperature with a thermometer that is traceable to standards established by the National Institute of Standards and Technology (NIST). A “Calibration Report” and “Certificate of Analysis of the 0.10 Simulator Solution” are among the “foundational documents” required by Chun to establish an Alcotest device’s accuracy.
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A conviction for driving while intoxicated (DWI) in New Jersey carries multiple penalties, including driver’s license suspension, a fine, and possible jail time. The severity of the penalties depends on the number of prior convictions or, in the case of a first offense, the defendant’s blood alcohol concentration (BAC). The penalties for DWI and refusal to submit to breath testing can also include mandatory installation of an ignition interlock device (IID) after reinstatement of a defendant’s driver’s license. Two bills currently pending in the New Jersey Assembly would expand the use of IIDs in DWI and refusal cases. One bill would reduce the period of license suspension for DWI offenses with the use of an IID. The other bill would require IID installation while a DWI or refusal sentence has been stayed pending appeal. If you have questions about the latest laws that relate to charges you might face, reach out to a New Jersey DWI attorney.

An IID is a device attached to a vehicle’s ignition mechanism. The device tests a sample of the driver’s breath to determine BAC, and prevents the vehicle from starting if BAC is above a certain level. Under current state law, municipal court judges have the discretion to order a defendant convicted of a first DWI offense to install an IID at the end of the mandatory license suspension period, provided that the defendant’s BAC was less than 0.15 percent. If BAC was 0.15 percent or higher, IID use is mandatory. For any first-time refusal conviction, IID installation is also currently mandatory. For either offense, the period of court-ordered IID use may be anywhere between six months and one year. Defendants must bear the cost of installing and maintaining an IID.

A bipartisan group of New Jersey legislators introduced A2089 in the Assembly in January 2018. The Assembly Judiciary Committee approved the bill in late November, and referred it to the Appropriations Committee. A companion bill, S824, received a favorable committee report in September. The bill would amend the DWI and refusal statutes, changing the provisions for license suspension and requiring IID installation in some cases.
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Police departments throughout New Jersey use a device known as the Alcotest to test breath samples in cases of suspected driving while intoxicated (DWI). New Jersey prosecutors charged a former State Police sergeant with multiple offenses in 2016, alleging that he failed to perform maintenance on Alcotest devices under his supervision, as required by state law, and then filed fraudulent reports stating that this maintenance was performed. The New Jersey Supreme Court recently ruled in State v. Cassidy that as many as 20,000 DWI defendants may challenge their charges or convictions. At the federal level, the Third Circuit Court of Appeals reviewed claims that the former sergeant’s alleged acts violated DWI defendants’ civil rights in Ortiz v. N.J. State Police.

The Alcotest device tests breath samples to determine blood alcohol content (BAC). Under the New Jersey DWI statute, BAC of 0.08 or higher establishes a presumption that the person was legally impaired by alcohol. In 2008, we participated in a landmark proceeding before the New Jersey Supreme Court that challenged the the accuracy of the Alcotest device and the admissibility of its results. While the court’s ruling in State v. Chun affirmed the use of the Alcotest device, it established strict procedures for maintaining and calibrating the device, and for providing documentation to DWI defendants indicating that police departments have followed these procedures.

After the former sergeant was arrested and charged, the New Jersey Supreme Court appointed a special master to determine whether the alleged failure to properly calibrate and maintain Alcotest devices in multiple counties affected the reliability of the evidence produced by those devices. The special master issued a report in March 2018 concluding that the failure to use a particular type of thermometer during calibration, as required by Chun, rendered the results of more than 20,000 tests scientifically unreliable. The state supreme court adopted the special master’s report in November 2018, effectively tossing out the state’s BAC evidence in over 20,000 DWI cases.
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