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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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The legal status of cannabis, including marijuana and related products, is undergoing major changes throughout the country. More than half of all U.S. states, including New Jersey, allow the possession and use of marijuana to some extent for medical purposes under a doctor’s supervision. A handful of states have enacted laws decriminalizing the possession of small amounts for recreational use. This may involve the substitution of civil penalties for criminal ones, or the removal of all legal penalties. A bill pending in the New Jersey Legislature, the New Jersey Cannabis Regulatory and Expungement Aid Modernization Act (NJCREAMA) would remove all criminal penalties for the purchase and possession of up to one ounce of cannabis. Several provisions of the bill directly address investigations and prosecutions under New Jersey’s driving while intoxicated (DWI) law.

The New Jersey DWI statute defines the offense, in part, as driving “while under the influence of intoxicating liquor, narcotic,…or habit-producing drug.” For alcohol, the statute establishes a blood alcohol concentration (BAC) of 0.08 percent as the per se standard of impairment. State law also requires DWI suspects to submit a breath sample for BAC testing. New Jersey has no per se standard for marijuana impairment in DWI cases. Prosecutors must instead rely on circumstantial evidence and testimony from police officers trained as “drug recognition experts.” A bill introduced in February 2018, A2776, would establish a per se standard of two nanograms per milliliter, based on blood tests, but it is still awaiting a committee assignment.

Legislators first introduced NJCREAMA in the Senate in June 2018 as S2703. The Senate Budget and Appropriations Committee reported favorably on an amended version of the bill on November 26, 2018. A companion bill, A4497, was introduced in the Assembly and received a favorable report from the Assembly Appropriations Committee on the same day. This means that both committees recommend passage of the bill. In addition to legalizing small amounts of marijuana for medical use, the bill would create a new Cannabis Regulatory Commission (CRC) “to regulate personal use and medical cannabis.” It also provides for the expungement of records in certain prior marijuana cases.
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The holiday season means many great things for people in New Jersey, such as family, friends, and celebration. Since the “celebration” part of the holidays can sometimes lead to excess, police tend to step up efforts to enforce New Jersey driving while intoxicated (DWI) laws on roads during the holidays. This may include the use of roadside sobriety checkpoints. New Jersey police are allowed to stop drivers at temporary checkpoint locations to inquire about alcohol consumption and look for signs of intoxication. The ability of police to do this is strictly limited, however, by the Fourth Amendment’s prohibition on unreasonable searches and seizures. New Jersey drivers should know their rights during sobriety checkpoint stops.

The New Jersey DWI statute defines the offense primarily as operating a motor vehicle “while under the influence” of alcohol or drugs, or with blood alcohol concentration (BAC) of 0.08 percent or more. The state may prove this by offering evidence of a defendant’s BAC obtained from a breath sample, which all drivers in New Jersey are required to provide under law, or through other evidence indicating that a defendant was impaired at the time they were operating a vehicle. Many DWI cases begin with a traffic stop based on a police officer’s suspicion that the driver is intoxicated. The Fourth Amendment requires that this be a “reasonable suspicion,” meaning that police officers cannot pull a driver over without some clear basis for suspecting DWI. To make an arrest, police must have “probable cause” to believe an offense has occurred.

Sobriety checkpoints, which allow police to stop some or all vehicles on a particular stretch of road, clearly do not involve “reasonable suspicion,” but the U.S. Supreme Court has affirmed their constitutionality. In 1990, the court held in Michigan Department of State Police v. Sitz that preventing DWI was a “substantial government interest,” that sobriety checkpoints “reasonably…advance that interest,” and that “the degree of intrusion upon individual motorists” is minimal. The New Jersey Appellate Division held that a sobriety checkpoint was constitutional in 1985 in State v. Kirk, and in 1989 in State v. Mazurek. The New Jersey Supreme Court reached a similar ruling in 2002’s State v. Carty.
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Prosecutors in New Jersey DWI cases have the burden of proving every element of driving while intoxicated (DWI) beyond a reasonable doubt. They must also ensure that the proceedings accord with a defendant’s due process rights. This includes a defendant’s right to understand the charges brought against them and the likely penalties that could result from a guilty verdict. New Jersey, along with many other states, has an implied consent statute that effectively requires drivers to submit to breath testing when ordered to do so by a police officer. A separate code section makes it a motor vehicle offense, punishable by a fine and driver’s license suspension, to refuse to submit to breath testing. The New Jersey Appellate Division recently ruled in two cases that alleged due process violations because of summonses that cited the wrong code section. In both cases, State v. Dito and State v. Horton, the summonses cited the implied consent statute, rather than the section making refusal an offense.The Fourteenth Amendment to the U.S. Constitution prohibits states from depriving persons of “life, liberty, or property, without due process of law.” One aspect of this requirement involves “fair notice” of potential criminal penalties for specific conduct. The U.S. Supreme Court has found statutes to be unconstitutional for failing to provide fair notice. In a 1964 decision, Bouie v. City of Columbia, the court held that a trespass statute did not clearly define the offense, such that the defendants knew that their conduct was illegal.

The defendants in Dito and Horton argued that New Jersey’s implied consent and refusal statutes present a similar question. The implied consent law, found in § 39:4-50.2 of the New Jersey Revised Statutes, states that anyone operating a vehicle on a public roadway in New Jersey “shall be deemed to have given his consent to the taking of samples of his breath” in DWI investigations. It does not, however, prescribe any penalty for refusing to provide a breath sample. The provisions for penalties are found in § 39:4-50.4a, which mandates driver’s license revocation and a fine.

The question presented in Dito and Horton was whether a summons for refusal that cites § 39:4-50.2 instead of § 39:4-50.4a constitutes “fair notice.” The defendant in Dito moved to dismiss the refusal charge in municipal court on this ground. The Law Division granted the motion, holding that “that the error was fatal because it failed to inform defendant of the nature of the charge against him.”

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Prosecutions for driving while intoxicated (DWI) in New Jersey often begin with a traffic stop. A police officer might pull a driver over based on a specific suspicion of DWI, or they might pull them over for another reason and then notice signs of possible impairment by drugs or alcohol. In either case, police must have “reasonable suspicion” of unlawful activity before initiating a traffic stop. The “reasonable suspicion” requirement is an exception to the Fourth Amendment’s warrant requirement. New Jersey prosecutors recently tried to justify a traffic stop that led to a DWI case under the “community caretaker” doctrine, another exception to the warrant requirement, in State v. Sutherland. The New Jersey Supreme Court had previously rejected prosecutors’ reasonable suspicion argument. On remand, the Appellate Division rejected the community caretaker argument as well. This can be a complex area of law, so it may be worthwhile to reach out to a New Jersey DWI lawyer if you have questions.

Under New Jersey law, it is a traffic offense to drive “while under the influence” of drugs or alcohol. The state can prove that a defendant was legally impaired through various means, including eyewitness testimony by the arresting officers, other officers, and “drug recognition experts.” Prosecutors can also introduce evidence of blood alcohol content (BAC) at or above the “legal limit” of 0.08 percent. Defending against a DWI charge often involves challenging the state’s evidence of impairment, but it may also be possible to challenge the justification for the traffic stop itself.

Brief detentions of individuals by police, based on reasonable suspicion of unlawful activity, are often known as “Terry stops,” after the 1968 U.S. Supreme Court decision Terry v. Ohio. Five years later, the court decided Cady v. Dombrowski, which held that police do not violate the Fourth Amendment when they find evidence of criminal activity while engaging in certain “community caretaking functions.” This refers to police activities that have no relation to “the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”
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A conviction for driving while intoxicated (DWI) in New Jersey can result in several kinds of penalties, including jail time, a fine, and suspension of one’s driver’s license. Another penalty, which is found in a separate part of state law, involves the payment of a surcharge for three years after a New Jersey DWI conviction. An agreement among multiple U.S. states regarding traffic offenses also gives New Jersey the authority to impose penalties for DWI convictions that occurred in certain other states. Earlier this year, the New Jersey Appellate Division ruled in Koscinski v. N.J. Motor Vehicle Comm’n on a challenge to the imposition of a surcharge in New Jersey based on a DWI conviction in Illinois.

Surcharges for DWI convictions are imposed by the New Jersey Motor Vehicle Commission (MVC) in a process that is separate from DWI prosecutions in municipal court. A first or second conviction results in a total surcharge of $3,000, payable over three years. The statute identifies this as a surcharge of $1,000 per year, but it is often payable in monthly payments of $83.33. A third conviction, if it occurs within three years of a prior conviction, results in a $4,500 surcharge, also payable over three years. Surcharges are also imposed in the same amount for refusal convictions. If a single incident results in convictions for both DWI and refusal, however, the statute states that only one surcharge will be imposed.

The Koscinski case raised the question of whether the MVC may impose a surcharge for an out-of-state conviction. New Jersey is member of the Interstate Driver License Compact (IDLC), an agreement among U.S. states to share information about traffic offenses. The IDLC also allows states to impose administrative penalties for traffic violations that occur in another member state. New Jersey law requires the MVC to “apply the penalties of the home State or of the State in which the violation occurred” in cases involving DWI and other offenses. Forty-five states and the District of Columbia are members of the IDLC. New Jersey joined in 1967, while Illinois, the other state involved in Koscinski, joined in 1970.
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Defending against a charge of alleged driving while intoxicated (DWI) in New Jersey requires careful evaluation of every part of the state’s case, which is why it is often wise to retain a dedicated New Jersey DWI lawyer if you are in such a situation. The state has the burden of proving guilt beyond a reasonable doubt on every element of the offense of DWI. The job of a defendant and their counsel is to challenge the state’s evidence and legal arguments. The Fourth Amendment to the U.S. Constitution prohibits police from conducting searches and seizures without a warrant, but the courts have identified numerous exceptions. A police officer may be able to justify a traffic stop if they can demonstrate “reasonable suspicion” of unlawful activity by the driver. In early 2018, the New Jersey Supreme Court rejected the state’s reasonable suspicion argument in State v. Sutherland. The court held that the officer’s suspicion was not “objectively reasonable.” It remanded the case to the Appellate Division to resolve the state’s alternative argument that the stop was justified by the “community caretaking” doctrine.

New Jersey’s DWI statute broadly prohibits the operation of a motor vehicle “while under the influence” of alcohol or drugs. It allows the state to prove impairment by alcohol in two ways: with evidence that a defendant’s blood alcohol concentration (BAC) was 0.08 percent or higher, or with other evidence indicating impairment. The statute identifies various penalties based on factors like a defendant’s BAC and their number of prior convictions. It does not make any mention of the manner in which police come to suspect that a driver is impaired.

A police officer may briefly detain a person, such as in a traffic stop, without a warrant if they have reasonable suspicion of criminal or other unlawful activity. The U.S. Supreme Court affirmed this in Terry v. Ohio in 1968. The court held that an officer’s suspicion must be based on “specific reasonable inferences…in light of his experience,” and not on an “inchoate and unparticularized suspicion or ‘hunch.’” In the context of a DWI case, an officer might testify that they witnessed a defendant driving erratically. A traffic stop that leads to a DWI charge does not have to begin with an officer’s suspicion of DWI. A police officer could stop a driver for another suspected traffic violation, such as running a red light, and then discover evidence of DWI. This becomes complicated when an officer is mistaken about traffic law.
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A conviction for driving while intoxicated (DWI) in New Jersey can lead to driver’s license suspension, fines and surcharges, and jail time. It can also have legal consequences beyond those established by the state’s motor vehicle laws. It is important to understand all of the ways a DWI charge or conviction can impact your life. The New Jersey Appellate Division recently ruled on an appeal from a decision by the Division of Child Protection and Permanency (DCPP) to place an individual on the state child abuse registry, partly because of an alleged DWI. The decision in DCPP v. H.V. addresses issues commonly found in DWI cases, such as blood alcohol content (BAC) and observations of outward signs of intoxication.

Under New Jersey law, DWI is a motor vehicle offense punishable by jail time, a fine, and license suspension. A first offense involving BAC of at least 0.08 percent, but less than 0.10 percent, has the least potential penalty, which may include a fine of $250 to $400 and up to thirty days in jail. A third or subsequent offense, regardless of BAC, carries the greatest possible penalty, including a $1,000 fine, a minimum term in county jail of 180 days, license suspension for ten years, and mandatory use of an ignition interlock device. Defendants may also be subject to surcharges payable to the state, based on factors like the number of prior offenses.

The H.V. case involves a case of suspected DWI that led to an investigation by the DCPP. State law defines “neglect of a child,” in part, as “failure to do…any act necessary for the child’s physical…well-being.” It requires “any person having reasonable cause to believe” that a child’s parent or guardian has committed abuse or neglect to make a report to the DCPP. Within twenty-four hours of receiving such a report, the DCPP must initiate an investigation. Within seventy-two hours, it must forward the report to the child abuse registry maintained at the division’s headquarters.
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