Defending the Case

July 1, 2015

New Jersey Considers “Excusable Neglect” Argument by Defendant Who Sought Post-Conviction Relief More than Two Decades After DWI Case

The defendant in a DWI case appealed the denial of his motion for post-conviction relief (PCR), which the municipal court and the Superior Court, Law Division said was not filed in a timely manner. He claimed that he was not aware of his right to bring a motion for PCR, and he noted that he was not represented by counsel in his earlier DWI case. These factors, he argued, constituted “excusable neglect,” which would allow a court to waive the usual five-year deadline to bring a PCR motion. The Appellate Division disagreed, finding in State v. Reese that a lack of knowledge of the law does not excuse a late filing. The court’s decision underscores the importance of retaining knowledgeable counsel at the earliest stage of a DWI case.

The original DWI case began in August 1983, when the Hammonton Municipal Court issued a summons for driving while intoxicated and driving while license suspended. The defendant failed to appear at the September court date but called the court prior to the rescheduled court date that October. The court postponed the case several times in 1983 and 1984. It issued a bench warrant for failure to appear in March 1984, but when police tried to serve the warrant, they noted that the defendant no longer lived at his address on file.

The case remained inactive until May 1991, when the defendant tried to restore his driver’s license at the Department of Motor Vehicles and was informed that a case was pending against him in Hammonton. He appeared in court shortly afterwards without an attorney. He claims that he did not waive his right to counsel, and the court did not advise him of his right to a court-appointed lawyer. An entry on the back of the summons says that he was “advised as to rights” and then simply has the notation “waived.” The defendant pleaded guilty to the DWI charge.

June 25, 2015

Defendant Argues “Mistake of Law” in New Jersey DWI Appeal

by Evan M. Levow

In a New Jersey DWI case, a defendant may claim that a police officer made a mistake that affects the outcome of the case. A “mistake of law” might involve conduct that an officer incorrectly believes is against the law, while a “mistake of fact” could be an error or misconception that leads an officer to wrongly think a driver has committed an offense. Mistakes of law are more likely to help a defendant fighting a DWI charge, although the legal landscape has recently changed considerably. A New Jersey Appellate Division decision, State v. Fath, involved an alleged mistake of law by the arresting officer that required dismissal of the DWI charge. The court found that it was actually a mistake of fact and that the officer’s decision to stop the defendant’s vehicle was justified on other grounds.

The arresting officer testified that he was stopped at a red light, facing the defendant’s vehicle, when he saw her make a right turn on red in violation of a posted “no right turn on red” sign. He followed her and then claimed that he witnessed her “carelessly cross oncoming traffic in order to make a left-hand turn.” He pulled her over, and she was ultimately charged with DWI, careless driving, and “failing to observe a traffic signal prohibiting a turn on red.”

The defendant moved to suppress the evidence obtained during the traffic stop. New Jersey traffic law requires drivers to obey all traffic control devices “placed in accordance with the provisions of this chapter.” Right turns on red are allowed “unless an official sign…prohibits the same.” The defendant produced a certification from the New Jersey Department of Transportation stating that it had failed to find any official approval of a “no right turn” sign at that intersection. In other words, she argued that the sign was not “an official sign” under New Jersey law, and it was therefore a mistake of law for the officer to stop her for making a right turn.

June 19, 2015

Recent Decisions in Several New Jersey DWI Appeals Demonstrate that Actual Driving Is Not Always Required to Sustain a DWI Conviction

by Evan M. Levow

In order to prove that a defendant has committed the offense of driving while intoxicated (DWI) in New Jersey, prosecutors do not necessarily have to provide direct proof that the defendant was driving, such as through testimony from an arresting officer that they saw the defendant driving erratically, or that they pulled the defendant over on suspicion of another traffic offense and noticed signs of intoxication. Under New Jersey law, the key element of a DWI offense is that a defendant has control of a vehicle while under the influence of alcohol or drugs. Several recent decisions by the New Jersey Superior Court, Appellate Division deal with situations where an arresting officer did not witness actual driving, but where the court still found the defendant guilty of DWI.

New Jersey’s DWI statute defines the offense, in part, as “operat[ing] a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or…with a blood alcohol concentration of 0.08% or more…” While the plain meaning of these words suggests that the state must prove actual operation of a vehicle, New Jersey courts have held that it is enough to prove that a defendant was imminently capable of operating a vehicle, or that evidence suggests that they had been operating the vehicle before the arresting officer’s arrival on the scene.

Evidence supporting a DWI conviction could include testimony indicating that the vehicle could not have gotten into the position where the officer found it without the defendant driving it there, or something as simple as the officer finding the defendant in the driver’s seat of a stopped vehicle with the engine running. Municipal courts decide many cases based on the defendant’s own admission that they had been driving earlier.

June 9, 2015

U.S. Supreme Court Ruling Limits Police Authority During Traffic Stops

by Evan M. Levow

A recent ruling by the U.S. Supreme Court, Rodriguez v. United States, establishes limits on police authority during traffic stops. The court ruled that an officer’s authority over the driver ends once the officer accomplishes the “mission” of the traffic stop, which in this specific case involved writing a warning ticket for a minor traffic violation. Anything that occurs after the “mission” is complete violates the Fourth Amendment prohibition on unreasonable searches and seizures. Since many DWI cases begin with a traffic stop for a minor infraction, this ruling could have a significant impact. At the same time, it still allows police to conduct further investigations, such as field sobriety testing, if they can show probable cause to suspect DWI.

A police officer pulled the defendant over for driving on the shoulder of a highway. He questioned the defendant and his passenger, ran a criminal check on the defendant’s license, and issued a warning ticket. While he acknowledged that he had completed the purpose of the stop, he did not let the defendant go. Instead, he ordered the defendant and the passenger out of the vehicle and made two passes with a drug-sniffing dog. On the second pass, the dog alerted to something in the vehicle, which turned out to be methamphetamine.

The drug-sniff search prolonged the traffic stop for an additional seven or eight minutes after the officer wrote the ticket. The defendant moved to suppress the evidence from the search of his vehicle, arguing that the officer lacked probable cause. The trial court denied the motion, finding that, while the officer lacked probable cause to search for drugs, the seven- or eight-minute extension of the stop was a minimal intrusion on the defendant’s rights and was therefore permissible. The court of appeals affirmed this ruling.

May 20, 2015

New Jersey Appellate Court Considers Whether “House Arrest” May Be Credited Towards Mandatory Minimum DWI Sentence

by Evan M. Levow

A charge of alleged driving while intoxicated (DWI) in New Jersey requires a thorough and vigorous defense from the moment charges are filed. A recent decision from the New Jersey Superior Court, Appellate Division, State v. Haas, demonstrates that a court may not be able to reduce certain penalties prescribed by state law, regardless of the circumstances. The municipal court ordered that the defendant was subject to “house arrest” while his appeal of the merits of his conviction was pending in the Superior Court, Law Division. The Law Division, while denying his appeal, credited his 149 days of house arrest as “time served” towards the 180-day minimum sentence for a third or subsequent DWI offense. The state appealed this decision, and the Appellate Division ruled that a credit against the mandatory minimum sentence is not authorized under New Jersey law.

The municipal court convicted the defendant of his third DWI offense. For a third or subsequent DWI conviction, § 39:4-50(a)(3) of the New Jersey Revised Statutes imposes a sentence of “not less than 180 days in a county jail or workhouse,” with the possibility of reducing the total sentence by up to 90 days for participation in certain drug or alcohol treatment programs.

The defendant asked the municipal court to stay the sentence while he appealed the conviction to the Law Division. New Jersey Court Rule 7:13-2 allows a municipal court to stay all or part of a sentence “on such terms as the court deems appropriate.” The court ordered the defendant confined to his home during the appeal. He could only leave to see his counsel, his doctors, and, at the defendant’s request, for one three-hour visit per week with his adult daughter, for whom he provided care after she suffered a brain injury.

May 13, 2015

Drug Court Program May Be Available in Some New Jersey DWI Cases

by Evan M. Levow

Diversion programs, commonly known as “drug courts,” are becoming increasingly common around the country. Courts may refer a case to a local drug court in order to provide more focus on rehabilitation and recovery, rather than guilt and punishment. Defendants charged with nonviolent drug- or alcohol-related offenses may be eligible. In New Jersey, drug court procedures are mandatory for certain cases, and they may be available in some DWI cases. A recent decision by the New Jersey Superior Court, Appellate Division, State v. Borges, examined some of the factors that may prevent admission of a defendant in a DWI-related case into a drug court program.

New Jersey’s drug courts are established within the existing Superior Court system. They typically involve a team of specialists in substance abuse and treatment, who work with prosecutors, court staff, probation officers, and others. Defendants who are admitted to drug court must complete various court-ordered services, submit to regular drug testing, and generally stay out of trouble. Failure to complete the program could result in jail or prison time. The use of drug court procedures is growing, with the number of voluntary admissions increasing by 25 percent between 2012 and 2013. A bill signed by the governor in 2012 makes drug court procedures mandatory in certain cases. Mandatory drug court sentencing began in 2013 in five counties, followed by four more counties in 2014.

Drug court procedures may be available in some DWI and DWI-related cases as an alternative to a jail sentence. The defendant in Borges was charged with driving while license suspended (DWLS), where the license suspension was due to a DWI conviction. The municipal court denied her request for admission to drug court. State law excludes defendants from drug court if they are subject to a mandatory minimum sentence. Since the defendant’s license suspension was due to a second or subsequent DWI conviction, state law requires a minimum jail sentence of 180 days. The municipal court therefore held that the defendant was not eligible for drug court. It did, however, offer to admit her to the program after she completed a 180-day jail sentence. The defendant refused this offer and filed an appeal.

May 3, 2015

New Jersey Appellate Court Reverses DWI Conviction, Finding Problems with Field Sobriety Tests, Other Evidence

by Evan M. Levow

The New Jersey Superior Court, Appellate Division reversed a defendant’s DWI conviction in January 2015 in State v. Barillari, based on discrepancies between the municipal court’s findings and the findings of the Superior Court, Law Division. The state had presented the arresting officer’s testimony regarding the defendant’s driving, demeanor, appearance, and performance on field sobriety tests (FSTs). Several fact witnesses and an expert witness, testifying for the defendant, challenged the officer’s testimony and his handling of the FSTs. The municipal court found the defendant guilty of DWI, relying on some, but not all, of the state’s evidence. The Law Division appeared to rely on evidence specifically disregarded by the municipal court. Because of this discrepancy, the appellate court remanded the case for a new trial.

The defendant was arrested on a snowy night in December 2009. The arresting officer testified that he witnessed the defendant “doing fishtails in a Jeep” in a restaurant parking lot. He claimed that he detected the odor of alcohol and that the defendant’s eyes were “bloodshot and watery.” The defendant reportedly stated that he had two beers earlier in the evening. The officer had the defendant perform several FSTs, including the horizontal gaze nystagmus (HGN) test, in an area of the parking lot with “a light coating of snow.” The defendant did not perform well on the FSTs. When completing the standard questionnaire after his arrest, the defendant allegedly stated that he had four beers that night.

At trial, the defendant called four lay witnesses: two friends who were with him from at least late afternoon, the manager of the restaurant where the arrest took place, and the restaurant bartender. They offered generally consistent testimony that the defendant and his two friends arrived at the restaurant for dinner. When the manager decided to close at 9:00 because of the snow, he offered to give the defendant a ride home. The defendant offered to warm up the manager’s Jeep and drove it around the parking lot to warm it up and to make room for a snow plow.

April 27, 2015

Court Rules on Right Against Self-Incrimination, Right to Jury Trial in New Jersey DWI Case

by Evan M. Levow

A defendant in a New Jersey DWI case claimed that the municipal court denied him two important constitutional rights: the right against self-incrimination and the right to a trial by jury. The Fifth Amendment to the U.S. Constitution provides that no one may be compelled to give testimony against themselves in a criminal case. This has led to the well-known “right to remain silent” during and after an arrest, as well as strict rules prohibiting prosecutors from using a defendant’s silence as evidence of guilt. The Sixth Amendment guarantees the right to a jury trial in many, but not all, criminal cases. The New Jersey Superior Court, Appellate Division’s opinion in this case, State v. Engle, explains how these rights apply in many DWI cases.

A police officer pulled the defendant over for allegedly making an illegal left turn. The officer claimed that he “detected an odor of alcohol” coming from the defendant’s vehicle and observed that the defendant’s eyes were “bloodshot and glassy.” He asked the defendant to perform several field sobriety tests (FSTs), and he testified that the defendant did poorly on all of them.

A medical doctor testified for the defendant, stating that his “excessive weight and reconstructed left knee” prevented the defendant from performing well on the FSTs. He also testified that the defendant’s bloodshot and glassy eyes were consistent with a cold the defendant stated he had at the time. Prosecutors countered by noting that the defendant did not complain about pain during the tests, nor did he inform the officer of any medical conditions that could affect the FSTs. The municipal court convicted the defendant of DWI, improper turn, and several other offenses.

April 13, 2015

DWI Appeal Claims Faulty Alcotest Machine Invalidates Conviction

by Evan M. Levow

Are breath or blood test results required to prove that a driver was legally intoxicated? While test results showing blood alcohol content (BAC) above 0.08 percent might be the most well-known means of proving intoxication, it is not the only means. A defendant recently asked a New Jersey appellate court to reverse his DWI conviction, arguing that the state lacked sufficient evidence to prove DWI without BAC evidence. The trial court had based its decision on testimony from the arresting officers. The appellate court reviewed New Jersey law regarding how the state may prove impairment in a DWI case, and it affirmed the convictions in State v. Robinson in February 2015.

According to the court’s opinion, the arresting officers observed the defendant’s pickup truck at about 2:00 a.m., traveling on I-287 at between 80 and 85 miles per hour and changing lanes without signaling. The defendant, after pulling over, reportedly told the officers that he had just worked a 14-hour shift, was very tired, and simply wanted to go home. The officers stated that they did not detect any odor of alcohol, although they claimed that defendant’s speech “was a little slurred.” They accepted his explanation, cited him for careless driving, and warned him against speeding.

At that point, according to the officers, the defendant “bolted” in his truck, quickly accelerating back to around 85 miles per hour. The officers testified that they had to drive close to 100 miles per hour to overtake him. The other officer spoke to the defendant when he pulled over. He also did not notice any alcohol smell, but he claimed that the defendant had difficulty getting his driver’s license out of his wallet. This officer had the defendant perform several field sobriety tests, including the walk and turn test and the one-legged stand test. He claimed the defendant did poorly on both. At this point, the officers arrested the defendant for DWI.

April 9, 2015

Out-of-State DWI Convictions Count as Prior Convictions in New Jersey DWI Cases, Appellate Court Holds

by Evan M. Levow

A defendant appealed his conviction of driving while license suspended (DWLS) to the New Jersey Superior Court, Appellate Division, claiming that the trial court should not have counted DWI convictions from New York as prior convictions under New Jersey law. State criminal law treats DWLS as a criminal offense, not a traffic offense, when the suspension is due to prior DWI convictions. The appellate court affirmed the trial court in State v. Galdieri, finding that state law includes out-of-state convictions, even if a prior case included mistakes of law.

DWLS is normally a traffic offense under New Jersey law. It is a crime of the fourth degree, however, if the reason for the suspension is a second or subsequent conviction for DWI or refusal to submit to breath testing. According to the court, the defendant in Galdieri had two DWI convictions from the state of New York, although it does not say when these occurred. The defendant pleaded guilty to DWI in a New Jersey court in October 2012. The court suspended his license for three months, which is the penalty for a first DWI offense. This apparently happened because the judge was not aware of the New York cases. Twelve days later, the defendant was pulled over and charged with DWLS, which resulted in the present case.

The defendant pleaded guilty to criminal DWLS in June 2013, based on the prior DWI convictions. On appeal, the defendant apparently conceded that he had prior DWI convictions from the state of New York, but he claimed that they should not count towards enhancing the offense to the criminal level. He argued that the October 2012 DWI conviction in New Jersey should count as a first offense, since it was the only New Jersey conviction and the judge imposed the penalty for a first offense.