Defending the Case

October 16, 2017

New Jersey’s DWI “Step-Down” Provisions for a Fourth or Subsequent Offense

New Jersey law regarding driving while intoxicated (DWI) imposes progressively harsher penalties for multiple convictions. A defendant might not face heightened penalties, however, through “step-down” provisions in New Jersey statutes and caselaw. If enough time passes between convictions, a second offense might be treated as a first offense for sentencing purposes. A step-down might also apply in other situations, such as if a prior conviction involved a guilty plea without representation by an attorney. Convictions that have been modified through the post-conviction relief (PCR) process may also be subject to a step-down. Courts must weigh a wide range of factors in determining how to sentence a second, third, or subsequent conviction. The Appellate Division took on several of these factors in a recent decision, State v. Terpstra.

The New Jersey DWI statute imposes increasingly harsh sentences for second DWI offenses and third or subsequent offenses. The statute directs courts to treat a second conviction as a first conviction, for the purposes of sentencing, if the first offense occurred over a decade before the second. Likewise, if a third offense occurs more than 10 years after the second, the court shall sentence it as a second offense. The relevant date is when the offenses occurred, rather than the convictions.

Representation by counsel in prior DWI cases may also affect whether the step-down provisions apply. In 1990, the New Jersey Supreme Court issued an important ruling, State v. Laurick. The court held that courts may not impose sentencing enhancements if a prior conviction involved a non-counseled guilty plea. In other words, a second DWI conviction must be treated as a first at sentencing if the defendant pleaded guilty in the first case without a lawyer. A third offense would be sentenced as a second.

October 15, 2017

Few Consistent Legal Standards Exist for DWI Cases Involving Marijuana

by Evan M. Levow

The legal standards in New Jersey for proving impairment by alcohol in cases of alleged driving while intoxicated (DWI) are fairly well established. Prosecutors can offer evidence of a defendant’s alleged blood alcohol content (BAC), or they can introduce eyewitness and expert testimony. The DWI statute does not only apply to alcohol, however. It also makes it an offense to drive while “under the influence of…[a] narcotic, hallucinogenic or habit-producing drug.” New Jersey has no equivalent to the BAC limit of 0.08 percent for drugs. A handful of states have established “legal limits” for certain drugs, but no consistent standards exist. Furthermore, breath testing cannot establish the amount of any particular drug in a person’s system, meaning that the state must rely on blood and urine testing. As legal marijuana becomes more prevalent in various parts of the country, these inconsistencies are likely to become clearer.

Under New Jersey law, a driver commits a DWI offense if they operate a vehicle with a BAC of at least 0.08 percent. This is sometimes known as DWI per se, since the state can meet its burden of proof based solely on BAC evidence and evidence that the defendant actually was driving or imminently intended to drive. Prosecutors can also establish guilt without BAC evidence—or occasionally with test results showing a BAC of less than 0.08 percent—through testimony and other evidence. This often includes testimony from police officers who observed a defendant’s demeanor and appearance, particularly if the defendant was driving erratically, had slurred speech, or otherwise displayed outward signs of intoxication by alcohol.

The DWI statute does not mention any specific drug other than alcohol, but courts have interpreted it to mean both illegal drugs and legal drugs that can affect a person’s ability to drive or operate machinery. They have held that eyewitness and expert testimony is sufficient to prove impairment by drugs. In 1975, the New Jersey Supreme Court held in State v. Tamburro that the state must offer evidence that a defendant’s “conduct, physical and mental condition and the symptoms displayed” are consistent with the effects of a narcotic. If the state meets this burden, the court held, it does not have to identify any specific narcotic. The court held in 2006’s State v. Bealor that, unlike in cases involving alcohol intoxication, lay testimony alone is not sufficient to establish impairment by marijuana or other drugs. Police officers with proper training, according to the court, may offer expert testimony.

September 6, 2017

Defendant in New Jersey DWI Case Challenges Conviction of “Per Se” DWI

by Evan M. Levow

New Jersey law allows prosecutors to offer evidence of driving while intoxicated (DWI) in two ways. One way relies on evidence like testimony by police officers about outward signs of intoxication, including appearance and behavior. The second method involves evidence that a defendant’s blood alcohol content (BAC) was above a certain level. This is often known as “per se” DWI because the BAC evidence creates a presumption that the defendant was impaired by alcohol. A DWI defense strategy should take both methods of proving DWI into consideration. Defending against a per se DWI charge in New Jersey often involves challenging police equipment more than police witnesses. The Appellate Division recently considered an appeal of a per se DWI conviction in State v. Page.

The DWI statute defines the offense as driving either “while under the the influence” of alcohol or drugs or with a BAC of at least 0.08 percent. The latter definition constitutes per se DWI. It does not necessarily require any evidence other than the defendant’s actual or imminent operation of a motor vehicle and the defendant’s BAC at or near that time. It is possible to obtain an acquittal or dismissal in a DWI case even with evidence of a BAC over 0.08 percent. It is also possible, however, for the state to obtain a conviction without BAC evidence or with a BAC of less than 0.08 percent.

New Jersey courts have established a variety of procedures and protocols that police must follow in an effort to ensure the accuracy of BAC test results. Police in this state commonly use a device known as the Alcotest to measure BAC. The defendant must provide a breath sample by blowing into a tube. The device then measures the alcohol content of the sample. The Alcotest requires regular maintenance and careful calibration, and it can produce inaccurate results without either of these. A 2008 decision by the New Jersey Supreme Court, State v. Chun, establishes maintenance and record-keeping protocols that police must follow for Alcotest results to be admissible in court. It also requires police to observe a DWI suspect for 20 minutes before administering the test.

August 24, 2017

Defendant Consented to Warrantless Blood Draw Shortly After Car Accident, New Jersey Court Finds

by Evan M. Levow

Under New Jersey’s driving while intoxicated (DWI) statute, a defendant is presumed to be legally impaired by alcohol if their blood alcohol content (BAC) is 0.08 percent or higher. Police in New Jersey commonly use a device known as the Alcotest to collect breath samples, which the device analyzes to measure BAC. Police may also obtain blood or urine samples to test, but state law only requires drivers to submit breath samples in DWI investigations. Obtaining a sample of blood usually requires a warrant or the person’s consent. Determining whether a defendant gave proper consent to a warrantless blood draw is a key question courts must consider. The New Jersey Appellate Division ruled on this issue earlier this year in State v. Milkosky.

The Fourth Amendment to the U.S. Constitution requires police to obtain a warrant before searching a person or their property. Drawing blood for use in a police investigation counts as a “search.” Courts have identified multiple exceptions to the Fourth Amendment’s warrant requirement. The “exigent circumstances” exception applies when police and prosecutors can demonstrate that taking the time to get a warrant from a judge would result in greater harm than the warrantless search, such as the destruction of evidence, the escape of a suspect, or harm to an officer or others.

Police have, at times, claimed exigent circumstances to justify collecting blood samples from a DWI suspect without a warrant or the suspect’s consent. Alcohol breaks down in the human body due to the process of metabolism. In 2013, the U.S. Supreme Court rejected the claim that the metabolism of alcohol in the body, by itself, satisfies the exigent circumstances exception. The decision, Missouri v. McNeely, established that a warrant or the suspect’s consent is required for most blood draws.

August 18, 2017

New Jersey Media Examine “Toughness” of State DWI Laws

by Evan M. Levow

The legal treatment of driving while intoxicated (DWI) varies from one state to another, with some states categorizing it as a criminal offense and others, including New Jersey, calling it a traffic or motor vehicle offense. Several recent media reports have questioned whether New Jersey’s DWI laws are “tough enough,” pointing to the risks allegedly posed by repeat offenders. The New Jersey Legislature has revised and amended the DWI statute many times, and several bills are currently pending that would increase some penalties and reduce others. A key question to consider when discussing the “toughness” of DWI laws is whether the purpose of these laws is to punish people who violate the law, prevent people from violating the law in the future, or some combination of the two. This particular dispute is at least as old as the legal system itself.

Every state defines DWI, in part, as driving with blood alcohol content (BAC) of 0.08 percent or higher. The differences between treating DWI as a criminal or traffic offense include the procedures courts must follow at trial, and the possible punishments resulting from a conviction. A DWI conviction in New Jersey, by itself, results in license suspension and a fine, as well as the possibility of jail time. A first-time offender with BAC of at least 0.15 percent must also install an ignition interlock device (IID) in their vehicle, both during and after the period of suspension. Second, third, and subsequent offenses also carry greater possible penalties, up to a maximum fine of $1,000, license suspension of ten years, and 180 days in jail.

In states where DWI is considered a criminal offense, penalties may be greater than in New Jersey, in terms of fine amount and length of jail sentence. The specific code section dealing with DWI in New Jersey, however, is not the only one involved in DWI enforcement. The New Jersey Motor Vehicle Code includes provisions penalizing drivers for refusing to submit to breath testing and for driving with a suspended license, as well as for circumstances like DWI with a minor passenger in the vehicle.
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July 26, 2017

New Jersey Appellate Division Addresses DWI Step-Down Provisions in Refusal Case

by Evan M. Levow

New Jersey law imposes increasingly harsh penalties for subsequent convictions of driving while intoxicated (DWI) and refusal to submit to breath testing. Penalties for both offenses may include fines, a driver’s license suspension, and the mandatory use of an ignition interlock device. A conviction for DWI may also involve jail time. State law includes “step-down” provisions, however, that lessen the severity of a sentence if a sufficient amount of time has passed since the most recent prior conviction. The New Jersey Appellate Division recently ruled on an appeal involving a defendant’s refusal conviction, which followed three DWI convictions. The court’s ruling in State v. Clapper considered whether the step-down provisions, which only mention second and third DWI offenses, apply to subsequent refusal offenses.

The New Jersey DWI statute imposes progressively harsher penalties for (1) a first DWI conviction involving a blood alcohol content (BAC) of at least 0.08 percent but less than 0.10 percent, (2) a first offense involving a BAC of 0.10 percent or higher, (3) a second offense, and (4) a third or subsequent offense. The refusal statute imposes increasing penalties for (1) first, (2) second, and (3) third or subsequent offenses. Prior DWI convictions may be used to enhance the sentence for a refusal conviction, according to the Appellate Division’s 2015 ruling in State v. Taylor, but prior refusal convictions may not be used to enhance a DWI conviction.

Under the step-down provisions, if a second DWI offense occurs more than 10 years after the first, the court must impose the sentence for a first offense. Likewise, if a third offense occurs more than 10 years after the second, the court must treat it as a second offense. This applies to both DWI and refusal convictions under the system described in Taylor. Notably, the step-down provisions do not mention subsequent convictions after a third one.

July 14, 2017

New Jersey Supreme Court Addresses Stays of Driver’s License Suspensions in DWI Appeals

by Evan M. Levow

A conviction for driving while intoxicated (DWI) in New Jersey results in a mandatory driver’s license suspension. A defendant has the right to appeal a conviction in municipal court, first to the Law Division and then to the Appellate Division. Courts have the authority to grant a stay of the driver’s license suspension pending the appeal. The New Jersey Supreme Court recently ruled on a DWI defendant’s challenge to the standards used by a lower court regarding his request for a stay. The court’s ruling in State v. Robertson finds that DWI defendants are presumed eligible for a stay when they request a trial de novo from the Law Division.

For a first-time DWI offense, when a defendant’s blood alcohol content (BAC) is at least 0.08 percent but less than 0.10 percent, the DWI statute mandates a three-month period of license suspension. If a defendant charged with their first offense had a BAC of 0.10 percent or higher, the court may set the length of the suspension between seven months and one year. A second DWI conviction results in two years of license suspension. The suspension period for a third or subsequent offense is 10 years.

Rule 7:13-2 of the New Jersey Rules of Court allows municipal judges to stay “a sentence or a portion of a sentence” while a defendant prepares an appeal. Higher courts may have the authority to grant stays under Rule 3:23-5. The New Jersey Supreme Court identified a three-part test for determining whether to grant a stay in 1982 in Crowe v. De Gioia. A defendant must establish that (1) the denial of a stay would cause “irreparable harm,” (2) the request “rests on settled law,” and (3) “greater harm would occur if a stay is not granted than if it were.”

June 30, 2017

DWI Defendant Asserts Necessity Defense in New Jersey Court

by Evan M. Levow

The state has the burden of proving a defendant’s guilt beyond a reasonable doubt in New Jersey criminal cases, as well as cases involving motor vehicle offenses like driving while intoxicated (DWI). Some defenses that a defendant can raise shift the burden of proof, requiring the defendant to produce evidence in support of their defense. These are known as affirmative defenses. The defendant’s burden of proof for an affirmative defense is a preponderance of the evidence, which is lower than the state’s burden. The affirmative defense of necessity, or justification, requires proof by a preponderance of the evidence that their commission of the charged offense was necessary, under the circumstances, to prevent an even greater harm. The New Jersey Appellate Division recently considered how this applies in DWI cases in State v. Han.

New Jersey defines the necessity defense in broad, rather unhelpfully technical terms, stating that an act that might constitute a criminal offense could be “justifiable by reason of necessity to the extent permitted by law.” Court rulings have crafted more practical guidelines for the justification defense, but they do not necessarily apply in DWI cases. As the court notes in Han, DWI is a motor vehicle offense, but the statute defining the necessity defense is found in the New Jersey Code of Criminal Justice. Not all protections afforded in criminal cases are available in motor vehicle cases.

June 14, 2017

Dismissal of Appeal in New Jersey DWI Case Reversed, Found to Be Abuse of Discretion

by Evan M. Levow

Defending against a charge like driving while intoxicated (DWI) in New Jersey requires knowledge of the DWI statute and all of its elements and requirements, as well as the court system’s procedures, rules, and schedules. The state is obligated to prove every element of the offense of DWI beyond a reasonable doubt. Both prosecutors and defendants are obligated to follow a court’s procedural requirements regarding matters like filing deadlines and court appearances. Courts may impose sanctions on a party that fails to follow these requirements, but the extent of these sanctions is limited. The New Jersey Appellate Division recently reviewed a lower court’s dismissal of a DWI appeal in State v. Figueroa. It found that the court exceeded its authority by dismissing the appeal based solely on the defendant’s absence from the courtroom for a single hearing.

New Jersey’s DWI statute requires the state to prove that a defendant was operating, had recently operated, or imminently intended to operate a motor vehicle while either “under the influence” of alcohol or drugs, or with a blood alcohol content of 0.08 percent or greater. Prosecutors may use evidence like BAC test results or testimony from police officers who observed the defendant to meet their burden of proof, but the time frame in which they can do this is limited.

Once prosecutors have filed DWI charges, the court’s scheduling system largely takes over. Once a hearing, trial, or other matter has been placed on a court’s docket, neither party can change the setting without the agreement of the other party or the approval of the court. Courts have authority to sanction parties or attorneys who miss deadlines or court appearances.

May 14, 2017

New Jersey Appellate Court Rules that Evidence in DWI Trial Was Insufficient

by Evan M. Levow

In any trial for a criminal or motor vehicle offense in New Jersey, the state has the burden of proving each element of the offense, as defined by statute, beyond a reasonable doubt. If the state fails to prove every element of a charged offense, a judge or jury is obligated to acquit the defendant. The New Jersey Appellate Division recently reversed a conviction for driving while intoxicated (DWI), finding in State v. DeCicco that the prosecution failed to prove an essential element of the offense at trial.

The elements of an offense typically consist of factual circumstances, such as a particular act by the defendant at a particular time and place, and a mental state, such as proof that the defendant acted with intent rather than with negligence. Mental state, also known as mens rea, is not a required element of DWI in New Jersey, although courts sometimes accept evidence of “intent to drive” in the absence of evidence that a defendant was actually driving. At a minimum, prosecutors must prove two essential elements of DWI:

(1) the act of “operat[ing] a motor vehicle”; and
(2) the commission of that act in one of two circumstances: (a) “while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug,” or (b) with a blood alcohol content (BAC) of at least 0.08 percent.