Defending the Case

February 26, 2016

New Jersey Court Reviews State Law Regarding Use of Drug Recognition Evaluators in DWI Cases

The law of driving while intoxicated (DWI) in New Jersey gives the state multiple ways to establish that a defendant was impaired by alcohol or another drug. Blood alcohol content (BAC) is not required for prosecutors to obtain a conviction. Prosecutors can also offer testimony from an arresting officer describing a defendant’s performance on field sobriety tests, their behavior and demeanor, and other observations. Some police departments make use of drug recognition evaluators (DREs), officers with specialized training in identifying the effects of drugs other than alcohol.

The New Jersey Appellate Division considered a defendant’s challenge to DRE testimony in late 2015 in an unpublished decision, State v. Vazquez. The court misinterpreted New Jersey case law and found that New Jersey courts have recognized them as qualified experts. That is incorrect. The court relied on a 2006 New Jersey Supreme Court decision, State v. Bealor, which held that DRE testimony was admissible in a marijuana case, because the court thought that marijuana intoxication is so easy to spot, and accepted the DRE’s testimony that Mr. Bealor was under the influence of marijuana. Bealor was wrongly decided, and it is now being used to support a proposition that is incorrect.

Prosecutors can use the New Jersey DWI statute to charge someone with driving under the influence of drugs (DUID), which requires proof that they were driving “while under the influence of…[a] narcotic, hallucinogenic or habit-producing drug.” Breath, blood, and urine tests are at least somewhat effective at ascertaining the amount of alcohol in a person’s system, and the way the human body typically metabolizes alcohol allows reasonable estimates, based on a person’s BAC, of how recently they were drinking. Other drugs are not as easily testable, which means that prosecutors must rely on other types of evidence to prove impairment. This is where some departments have started using DREs.

A DRE receives training in how to recognize the effects of various drugs in order to determine whether a person is legally impaired, usually after an arrest for suspected DWI or DUID. The International Association of Chiefs of Police oversees training and certification. DREs use a 12-step process that begins with a review of BAC results, if any, and an interview of the arresting officer. The DRE then conducts an examination of the arrestee, which includes checking their pulse, examining their eye movements (similar to a field sobriety test), conducting tests of physical coordination, taking their blood pressure, and checking their pulse again. It also includes a “muscle tone” examination, based on the theory that “certain categories of drugs may cause the muscles to become rigid,” while others may make them “very loose and flaccid.” This 12 step process has not been validated or held to be scientifically reliable in New Jersey. Because the Vazquez opinion is unpublished, it carries no precidential weight.

February 15, 2016

New Jersey Appellate Court Rules on Question of Police Duties Under State v. Chun

by Evan M. Levow

Law enforcement agencies in New Jersey use a device known as the Alcotest to determine the blood alcohol content (BAC) of individuals suspected of driving while intoxicated (DWI). A 2008 decision by the New Jersey Supreme Court in which we represented several parties, State v. Chun, determined that the Alcotest is scientifically reliable, provided that the state meets certain conditions. The decision also established procedures that law enforcement must follow when using the device. The New Jersey Appellate Division heard a case last year, State v. Sorenson, that asked it to decide whether a failure by police to follow certain parts of Chun required suppression of evidence obtained with an Alcotest device.

BAC evidence is not required in a DWI case. A court can convict a defendant of DWI based solely on the testimony of officers who observed the defendant’s appearance and behavior. This is known as an “observational violation.” The New Jersey DWI statute also provides, however, that any person with a BAC of 0.08 percent or higher is presumed to be under the influence of alcohol. A DWI case based on BAC results is known as a “per se violation,” since it rests on the presumption of impairment. For a first DWI offense, the penalties are the same for a per se violation when the defendant’s BAC is 0.08 percent or higher, but lower than 0.10 percent, as they are for an observational offense. The penalties are greater, however, for a per se violation with a BAC of 0.10 percent or higher.

After an individual submits a breath sample to an Alcotest machine, the device runs various tests and prints out a Alcohol Influence Report (AIR), stating the BAC detected in the sample. The AIR frequently serves as the state’s evidence of impairment. Under Chun, police are required to provide a copy of the AIR to a defendant or a defendant’s counsel.

February 9, 2016

Defendant in New Jersey DWI Case Raises “Double Jeopardy” Claim During Appeal

by Evan M. Levow

The Fifth Amendment to the U.S. Constitution states that a person may not, “for the same offense…be twice put in jeopardy of life or limb.” This is known as the “double jeopardy” clause of the Constitution. Courts have interpreted it to mean—in a very general sense—that the government cannot charge a person with a criminal offense if they have been acquitted or convicted of an offense based on the same act or incident. The New Jersey Appellate Division, in State v. Sorenson, recently considered a DWI defendant’s claim that double jeopardy barred the prosecution’s appeal. A common misconception about double jeopardy is that it prevents the state from appealing any ruling in a criminal case, since it often does not apply to non-final judgments in trial courts.

The double jeopardy clause states that prosecutors cannot charge someone for the same offense more than once. Each phrase in the clause, particularly the phrase “twice put in jeopardy,” has been subject to extensive judicial scrutiny. Double jeopardy unquestionably applies once a person has been acquitted or convicted of a particular offense. For example, if a person is charged with DWI and acquitted (or convicted) by a municipal court, the state cannot charge that person with DWI again for the same incident. Prosecutors also could not appeal the acquittal itself.

When a case does not result in a final judgment of conviction or acquittal, however, double jeopardy becomes much more complicated. If a court dismisses a case based on a defendant’s pre-trial motion, the prosecution might be able to appeal that order. If an appellate court rules in the state’s favor, the case would proceed as though the dismissal had not occurred.

January 19, 2016

New Jersey Laws Regarding Alcohol, Minors, and DWI

by Evan M. Levow

New Jersey law regulates alcohol in numerous ways, from licensing sellers to penalizing the possession of alcohol by minors. These laws are distributed among various state codes, including the provisions on driving while intoxicated (DWI) found in Title 39, “Motor Vehicles and Traffic Regulation.” Laws dealing with the possession of alcohol by minors, defined as anyone under the age of 21 years, are found in both Title 33, “Intoxicating Liquors,” and Title 2C, the New Jersey Code of Criminal Justice. Local governments in New Jersey, such as cities and boroughs, may enact their own ordinances regarding MIP, which has created some interesting legal history. The offense of minor in possession of alcohol (MIP) has some similarities to DWI law in New Jersey.

The most obvious similarity between DWI and MIP is that they both involve alcohol. They may also both result in a driver’s license suspension. If we look a bit deeper, we see that neither offense is generally considered “criminal” under state law. DWI is a traffic violation, while MIP is a “disorderly persons offense,” meaning that it can only result in a fine, not jail time, and it does not result in a criminal conviction record—although it might still appear in a background check. Since prosecutions for DWI or MIP are not considered criminal proceedings, a defendant is not entitled by law to a trial by jury or other features of the criminal justice system.

The New Jersey Code of Criminal Justice states that a minor commits an offense if they “knowingly possess[ alcohol] without authority,” or if they “knowingly consume[]” alcohol in public, in a school, or in a motor vehicle. If the person is in a vehicle, the statute imposes an additional penalty of six months’ license suspension, apparently regardless of whether the person was driving.

December 22, 2015

Judge Dismisses DWI Charge Because of Driver’s Rare Medical Condition

by Evan M. Levow

In order to prove that a person has committed the offense of driving while intoxicated (DWI), the state must prove impairment by alcohol or another intoxicating substance. Prosecutors can do this in several ways, including blood alcohol content (BAC) based on a blood or breath test. A BAC of 0.08 percent or higher is presumed to be evidence of impairment. It is possible for a court to convict a person of DWI in the absence of BAC evidence, or even with a BAC that is below 0.08 percent, based on other evidence of impairment. Could a person with a BAC above 0.08 percent, on the other hand, overcome the presumption of impairment? A recent case out of New York shows how a rare medical condition led to an unusually high BAC result, although this is not likely to be a common defense.

New Jersey’s DWI statute specifically mentions a BAC of 0.08 percent or above in its definition of the offense, but it also states that a person commits DWI if they drive “while under the influence of intoxicating liquor” or a similar substance. Drivers in New Jersey are subject to the implied consent law regarding breath testing, meaning that they can be penalized for refusing to submit a breath sample. Even without BAC evidence, prosecutors may prove impairment through other means, such as field sobriety tests performed during a traffic stop. An officer can testify about observations like slurred speech or an alcohol odor. If the state has BAC test results above the legal limit, however, prosecutors may not bother with an officer’s testimony as much, which appears to have been a factor in the recent New York case.

According to local news coverage, police in the Buffalo, New York area stopped a 35-year-old schoolteacher one evening in October 2014, based on a 911 caller’s report of a vehicle driving erratically. The officer claimed to have smelled alcohol and stated that the defendant’s speech was slurred, and her eyes appeared “bloodshot” and “glassy.” The defendant reportedly admitted to having three cocktails several hours earlier. Her BAC test results, however, showed 0.33 percent, which is over four times the legal limit and close to the point of medical emergency. Despite this result, her condition did not match that of someone about to go into a coma.

December 15, 2015

New Jersey Appellate Division Vacates Sentence in DWI Case Because of Unusual Procedural History, “Actual Vindictiveness” of Municipal Court Judge

by Evan M. Levow

New Jersey laws regarding driving while intoxicated (DWI) include the act itself and multiple related offenses, including driving while one’s license is suspended (DWLS) and refusal to submit to breath testing. State law imposes harsher penalties for second and subsequent offenses, but it also mitigates these penalties in some situations. Merely having prior convictions therefore does not necessarily mean that a defendant must receive an enhanced penalty. A decision from the New Jersey Appellate Division in September 2015, State v. Jones, involved a defendant with a particularly complicated history of prior convictions. This made determining a proper sentence quite difficult.The Jones case involves all three types of offenses commonly associated with DWI: DWI itself, DWLS, and refusal. DWI and refusal are both considered traffic offenses under New Jersey law rather than criminal offenses. The penalty for a first-time DWI offense is based, in part, on the defendant’s blood alcohol content (BAC). A second offense may involve a higher fine, a jail term, and the installation of an ignition interlock device, regardless of BAC. For a third or subsequent offense, the potential fine and jail term are even higher, also regardless of BAC. A DWI at any level leads to a mandatory period of a driver’s license suspension. DWLS can become a criminal offense in certain situations, partly based on the number of prior DWI convictions, with a mandatory 180-day jail sentence.

New Jersey courts have established certain requirements for guilty pleas in DWI cases, largely due to the potentially unforeseen consequences of pleading guilty with prior convictions. One very important rule, established by the New Jersey Supreme Court in 1990 in State v. Laurick, states that a prior conviction may not be used to enhance a subsequent jail sentence if the prior conviction violated a defendant’s constitutional rights. The most common way defendants use this rule is when they did not have counsel for a prior guilty plea. Another case from the New Jersey Supreme Court, 1989’s State v. Barboza, established minimal standards for the entry of a guilty plea by an uncounseled defendant.

December 3, 2015

New Jersey DWI Arrests, Part 2: Beyond Traffic Stops

by Evan M. Levow

New Jersey police arrested a man in late October for suspected driving while intoxicated (DWI), after the vehicle he was allegedly driving collided with another vehicle. A traffic stop is perhaps considered the usual way a DWI arrest occurs, but it is not the only way. Police can detain a person on suspicion of DWI through any legal means of establishing probable cause, including random stops for the purpose of deterring DWI. New Jersey courts have held that an arresting officer does not have to witness a person actually driving to have probable cause to suspect DWI. This series looks at the various grounds for a DWI arrest.

Accidents

The recent story involves an arrest that occurred around midnight on Halloween. According to news reports, a vehicle collided with a police cruiser, causing the cruiser to go onto a concrete embankment and hit a utility pole. Failing to avoid an accident can, by itself, be a traffic offense under New Jersey law. In this case, however, police also suspected the person alleged to have been driving the vehicle of DWI.

Suspicion of DWI often arises from physical signs of intoxication, such as the odor of alcohol or the presence of bloodshot eyes, and from a person’s behavior, such as slurred speech, lack of coordination, or swaying while standing. The driver was reportedly charged with DWI with an enhancement because the alleged incident occurred in a school zone, as well as refusal to submit to breath testing and failure to yield to an emergency vehicle.

December 1, 2015

New Jersey DWI Arrests, Part 1: Traffic Stops

by Evan M. Levow

The most common conception of a DWI arrest in the popular imagination is, perhaps, one that takes place after an officer pulls over a car based on suspicion that the driver is intoxicated or otherwise impaired. This accounts for many DWI arrests, but it is by no means the only way a person could find themselves facing DWI charges. In this series of posts, we will review the various ways police may make an arrest for suspected DWI.

Traffic Stops on Suspicion of DWI

Police officers are legally authorized to stop a vehicle and question its driver if they have a reasonable suspicion that the person is in the process of committing a crime, has recently committed a crime, or is preparing to commit a crime in the near future. This is commonly known as a “Terry stop,” after the U.S. Supreme Court’s 1968 decision in Terry v. Ohio.

An officer can claim reasonable suspicion of DWI based on alleged indicators like the inability to stay in a lane of traffic, weaving between lanes of traffic, colliding with other vehicles or roadside objects, and generally erratic driving. It can even include overly cautious driving in some situations, although that could also merely be an indicator that the driver is transporting something fragile.

November 24, 2015

New Jersey Township Offers Free Rides in Effort to Reduce DWI

by Evan M. Levow

Police departments and state and local governments around the country frequently roll out new plans for reducing the incidence of driving while intoxicated (DWI) in their jurisdictions. Usually, these plans involve extra police patrols, DWI checkpoints, or increased penalties for certain acts associated with DWI. Whether measures like this are effective is a matter of intense debate. Evesham Township, New Jersey is taking a different approach. It began a program in September 2015 that offers rides home to people who, after a night out, are not able to drive themselves. Programs like this could be beneficial in New Jersey, where state DWI law prohibits not only operating a vehicle while intoxicated but also, in some cases, permitting an intoxicated person to drive.

Evesham Township’s program began in September as a 30-day pilot program using shuttles and a local designated driver service. In October, the township announced that it was extending the program through the holidays and that it was doing so through a partnership with the ride-sharing company Uber and a designated driver service called BeMyDD. This is reportedly the first program of its kind in the country.

Uber, which is based in San Francisco, connects users with drivers through a mobile app. Its service is reportedly available in at least 300 cities around the world, including many parts of New Jersey. BeMyDD began in Cleveland several years ago and has spread to other U.S. cities. It allows people to essentially hire a driver at an hourly rate to take them to bars, restaurants, and other locations.

November 14, 2015

Grounds for Post-Conviction Relief in New Jersey DWI Cases

by Evan M. Levow

Post-conviction relief (PCR) is a critically important procedure in many types of cases in New Jersey, including—and perhaps especially including—convictions for driving while intoxicated (DWI). Courts can use prior DWI convictions as grounds for enhancing penalties for a current DWI conviction. This is where PCR often plays an essential role.

Grounds for Relief

Numerous possible grounds exist for PCR, including:

– The defendant’s guilty plea did not meet the requirements of the New Jersey Rules of Court. Rule 7:6-2(a) states that a municipal court, before accepting a guilty plea, must determine that the defendant is voluntarily making the plea, and that the defendant understands the charges and the consequences of pleading guilty. The defendant must also state a “factual basis” for their guilty plea.
– The defendant was unrepresented by counsel, and the court did not make a finding on the record, as required by Rule 7:6-2(a), that the defendant had “knowing[ly] and intelligent[ly]” waived the right to counsel.
– The defendant received ineffective assistance of counsel.
– The DWI trial, and/or the conviction and sentence, violated the defendant’s rights under the U.S. Constitution, the New Jersey Constitution, or New Jersey law.
– The sentence imposed by the court was illegal. This last ground for PCR merits additional examination.