Defending the Case

November 24, 2015

New Jersey Township Offers Free Rides in Effort to Reduce DWI

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.

October 27, 2015

New Jersey Court Finds that “Marijuana Smell” Can Still Provide Probable Cause, Despite State’s Medical Marijuana Law

by Evan M. Levow

Marijuana laws are undergoing reform all over the country. Numerous states allow medicinal marijuana use with a doctor’s prescription, and a handful of states have decriminalized it for recreational use. It remains illegal under federal law, however, and is only permitted for limited medicinal purposes in New Jersey under the Compassionate Use Medical Marijuana Act (CUMMA), which became law in 2010. A September 2015 ruling from the New Jersey Appellate Division, State v. Myers, held that the smell of marijuana may still serve as the basis for probable cause for an officer to conduct a search. The case did not specifically involve driving while intoxicated (DWI), but its holding affects DWI cases throughout the state.

According to the court’s ruling, a state trooper responded to a report of gunshots at about 1:00 a.m. in Cumberland County. The trooper testified that he observed three parked cars, one of which appeared to be occupied, next to a residence that was hosting a party. He approached that car and briefly spoke with the defendant, who was in the driver’s seat. He then went to the residence and spoke to the party host.

While the trooper was returning to his vehicle, he noticed that the defendant had moved his car to a nearby driveway. A woman was yelling at the defendant to move his vehicle. The trooper claimed that he found it “suspicious” that the defendant had moved his car, so he approached the vehicle again. He claimed that this time, he “detected the odor of burnt marijuana coming from the car.” He instructed the defendant and his two passengers to exit the car, and he placed all three under arrest. He conducted a “search incident to arrest” and found a small bag of marijuana and a handgun in the defendant’s jacket.

October 26, 2015

City Faces Massive Backlog of Untested Blood Samples, Potentially Delaying DWI Prosecutions

by Evan M. Levow

A Texas city is facing a major backlog of blood samples collected in driving while intoxicated (DWI) cases. San Antonio subjects DWI suspects to mandatory blood draws if they refuse to submit a breath sample. Police use breath or blood samples to determine blood alcohol content (BAC). A BAC level of 0.08 percent or higher is legally presumed to be evidence of intoxication, although BAC evidence is not always essential to a prosecutor’s case. The backlog does not appear to be causing a delay in pending DWI cases, at least according to local prosecutors. The U.S. Constitution, however, guarantees defendants a right to a speedy trial, so backlogs in the processing of evidence are always cause for concern.

Bexar County, Texas, whose jurisdiction includes San Antonio, had a contract with a private laboratory to test blood samples in DWI cases. The District Attorney (DA) canceled the contract shortly after taking office in early 2015. A series of documentation errors by the laboratory called hundreds of DWI cases into question. This included the alleged mislabeling of up to 350 blood samples, first discovered in 2014. The county now faces a backlog of over 1,000 samples, with no efficient means of testing them.

New Jersey DWI law, we should note, differs from Texas law with regard to blood draws. Multiple Texas cities have enacted “no refusal” policies that mandate blood draws from all DWI suspects who refuse a breath test. San Antonio expanded this policy from weekend traffic stops to all traffic stops in 2011. New Jersey drivers are subject to the implied consent statute for breath testing, meaning that anyone driving on New Jersey roads has, solely by virtue of driving, consented to providing a breath sample to a police officer who suspects DWI. This statute does not apply to blood samples. Police may still compel a person in New Jersey to submit a blood sample without a warrant, however, in certain circumstances.

October 5, 2015

Medical Marijuana Patient Acquitted of DWI

by Evan M. Levow

The offense of driving while intoxicated (DWI) includes more than just alcohol. Almost any drug that causes an impairment can lead to a DWI charge. The law in New Jersey and other states specifically sets a “legal limit” for blood alcohol content (BAC), but it does not always specify an amount for other substances. Different substances also require different tests, and not all tests are reliable. A driver charged with DWI in Colorado due to a positive marijuana test recently obtained an acquittal after she argued that the marijuana test cannot prove that she was impaired at the time she was driving. Colorado law is significantly different from New Jersey law on this issue, but this state’s law is gradually changing.

Colorado is one of a handful of states to have effectively legalized marijuana for both medical and recreational use. In New Jersey, marijuana remains a Schedule I controlled substance, except for some narrow exceptions allowed by the New Jersey Compassionate Use Medical Marijuana Act (CUMMA). The defendant in the Colorado case reportedly moved to that state specifically so that she could use marijuana for her chronic back pain. An officer pulled her over in June 2014, not for erratic driving but for an expired license plate tag. After noticing the smell of marijuana, the officer required her to perform field sobriety tests, which she allegedly failed. A blood test showed a marijuana level of 19 nanograms, well above the state’s limit of five nanograms.

Prosecutors charged the defendant with DWI. They offered her a plea deal, which she reportedly rejected because it would require her to give up her medical marijuana card for up to two years. The case went to a jury trial, which is allowed in Colorado, unlike New Jersey. She argued that her test results were not conclusive evidence that she was impaired at the time she was driving her vehicle, since THC, the active component of marijuana, lingers in the bloodstream far longer than alcohol or other substances. While a blood test to determine BAC might indicate that a person recently consumed alcohol, she argued, a blood test for marijuana cannot tell whether or not a person is actually impaired. The jury agreed and nullified the charges.

September 30, 2015

The Fifth Amendment Privilege Against Self-Incrimination in New Jersey DWI Cases

by Evan M. Levow

The Bill of Rights contains numerous important protections for people against possible overreach by the government, especially in prosecutions for alleged offenses. The Fifth Amendment protects a very important right: the privilege against self-incrimination. This means that a court cannot compel a person to testify against themselves in a criminal trial. A person invoking this privilege is often said to be “taking the Fifth.” The laws that deal with driving while intoxicated (DWI) in New Jersey and many other states, however, seem to conflict with this privilege in some ways, such as by requiring drivers to submit to breath testing. It is worth looking more closely at these laws, and how the U.S. Supreme Court and New Jersey courts have interpreted them in light of the Bill of Rights.

The state can present statements made by a defendant as evidence of guilt at trial, with some important restrictions. One of the most famous decisions by the U.S. Supreme Court, Miranda v. Arizona in 1966, established that law enforcement officers must advise a suspect of certain constitutional rights before conducting a “custodial interrogation.” The warning that has resulted from this ruling, known as the “Miranda warning,” includes the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to an attorney.

Officers must read the Miranda warning to a suspect at about the same time they place the suspect under formal arrest, and before they begin asking direct questions about the alleged offense. These are the two elements of a “custodial interrogation,” and they must be present for Miranda to apply. Statements made by a suspect during a custodial interrogation are inadmissible in court if the suspect has not been “Mirandized.”

September 17, 2015

Five Factors Courts May Consider in Determining Whether a Driver Was Impaired in a New Jersey DWI Case

by Evan M. Levow

A common misconception in driving while intoxicated (DWI) cases involves breath testing and blood alcohol content (BAC). New Jersey’s DWI statute states that a person who operates a vehicle with a BAC of 0.08 percent or higher commits a violation, but this is not the only way the state can prove intoxication or impairment. The statute actually defines the offense in two ways: driving with a BAC above a minimum amount, or driving “under the influence” of alcohol or other drugs. Even without any BAC evidence, prosecutors may still be able to prove that a defendant was “under the influence,” intoxicated, or otherwise impaired. The Appellate Division of the New Jersey Superior Court issued a ruling several months ago in State v. Kessler, which identified various methods of presenting evidence of intoxication or impairment.

A police officer pulled the defendant over at about 1:22 a.m. He had allegedly observed the defendant swerve from the left lane of the highway into the center lane, putting him in the path of a tractor-trailer. He also claimed that the defendant was driving without his headlights on. The officer testified that the defendant’s eyes appeared “bloodshot and watery,” and the officer could smell alcohol. The defendant allegedly refused to submit a breath sample and did not perform well on several field sobriety tests (FSTs).

The defendant was charged with DWI, refusal to submit to breath testing, reckless driving, and other offenses. At trial in the municipal court, the defendant presented testimony from several expert witnesses. One witness testified about difficulties faced by some people on the horizontal gaze nystagmus (HGN) test. Another witness testified about conditions, both congenital and injury-related, affecting the ability to perform FSTs like the walk-and-turn and one-leg-stand tests. The defendant denied drinking any alcohol on the night of his arrest.

August 31, 2015

Defendant in New Jersey DWI Case Claims Act of Driving Was Justified to Avoid “Greater Evil”

by Evan M. Levow

In some situations, a defendant in a criminal case can claim that their actions were justified under the specific circumstances that existed at the time of the alleged offense, since they were necessary to avoid or prevent a different crime or injury that would have been objectively worse. This is generally known as the defense of “necessity.” It comes up occasionally in New Jersey driving while intoxicated (DWI) cases. Successfully arguing this in court can be very difficult, as indicated by several recent decisions from the New Jersey Superior Court, Appellate Division. Its ruling in State v. Giaquinto, issued in June 2015, offers a particularly stark example of this.

The court’s opinion in Giaquinto, unlike most appellate opinions, has a certain dramatic flair, perhaps because of the harrowing details of the case. Police in Sparta Township responded to a report of a hit-and-run at about 1:00 a.m. and located the defendant’s car “traveling at a very low rate of speed.” The defendant reportedly had “scratches on her legs and [was] wearing nothing but a leather jacket.” The officer testified that the defendant had slurred speech and “a strong odor of alcohol,” and she denied hitting a wall in her car or being naked. The officer eventually convinced her to put on a dress he saw in the backseat. She reportedly failed several field sobriety tests and failed to provide sufficient breath for the Alcotest. Another officer testified that she “rang[ed] from calm and cooperative to belligerent and verbally abusive.”

At trial, the defendant testified that, on the night of her arrest, she met an acquaintance identified as Maggie at about 7:15 p.m. at a restaurant, where she drank two martinis. She then went to Maggie’s house at 10:00 p.m. “to meet her dog, the same breed as defendant’s.” The defendant said Maggie gave her a glass of wine that tasted “bizarre.” She claimed to have little memory of the rest of the night, except for “spotty” memories of a sexual assault.

August 29, 2015

New Jersey Appellate Courts Are Limited in Their Ability to Review Factual Findings in DWI Cases

by Evan M. Levow

A prosecution for alleged driving while intoxicated (DWI) in New Jersey usually begins in the municipal court of the city, borough, town, township, or village in which the arrest occurred. A defendant can appeal a DWI conviction for reversible error, abuse of discretion, and other grounds. A July 2015 appellate court decision, State v. Hwang, offers an overview of the appeals process in New Jersey DWI cases.

An appeal from a municipal court order or verdict goes to the New Jersey Superior Court, Law Division in the county where the municipal court is located. From there, it would go to the Superior Court, Appellate Division. At this level of appeal, the court has much less discretion to review the lower courts’ findings of fact. Further appeals go to the New Jersey Supreme Court, and finally the United States Supreme Court.

A Hillsborough Township police officer pulled over the defendant in Hwang in October 2012 after allegedly witnessing her swerve across the median line several times. He testified that she failed several field sobriety tests, refused to comply with his orders, and failed to provide an adequate breath sample for the Alcotest. Prosecutors charged her with DWI, refusal to submit to breath testing, failure to stay in the right lane, and resisting arrest. While the case was pending, the defendant sued the arresting officer, claiming illegal arrest and assault. She later filed a federal civil rights lawsuit against the township.

August 20, 2015

Felony DWLS Conviction Overturned by New Jersey Appellate Court

by Evan M. Levow

A conviction for driving while intoxicated (DWI) in New Jersey usually results in a driver’s license suspension, with the length of time varying based on the defendant’s blood alcohol content (BAC) and number of prior convictions. Driving while license suspended (DWLS) is a separate traffic offense under New Jersey law, which rises to the level of a felony criminal offense in certain circumstances. The New Jersey Superior Court, Appellate Division issued an important ruling recently in State v. Diaz, reversing a criminal DWLS conviction based on the underlying reason for the defendant’s license suspension.

DWLS is a fourth-degree criminal offense in some situations, with a mandatory minimum jail sentence of 180 days. This provision became effective on August 1, 2011. It applies in two situations, described in § 2C:40-26 of the New Jersey Revised Statutes. These are when the defendant has a prior conviction for DWLS, which occurred during a period of suspension for a DWI conviction, or when the defendant’s current license suspension is due to a second or subsequent DWI conviction.

In the Diaz case, the defendant was arrested in August 2013 and charged with DWI, DWLS, and several other offenses. According to the court’s opinion, the defendant’s driving record showed two prior DWI convictions and three DWLS convictions. The DWI convictions occurred in March 2008 and April 2009. The April 2009 case also included a DWLS conviction. The other DWLS convictions were in January 2011 and February 2013. The timing of the various suspensions was critical to determining whether the defendant committed criminal DWLS, or merely a traffic offense, in August 2013.