Articles Posted in Defending the Case

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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.

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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.

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A New Jersey appellate court recently considered the question of whether a defendant must inform the court of prior convictions that, under New Jersey law, could result in an enhanced sentence. In an unpublished February 2015 decision, State v. Kane, the court ruled that a defendant charged with driving while license suspended (DWLS) was not obligated to inform prosecutors or the court that the suspension was due to a driving while intoxicated (DWI) conviction. State motor vehicle and criminal statutes include enhanced penalties in certain DWLS cases where DWI was the reason for the suspension. The court rejected the state’s arguments that the defense’s failure to provide this information constituted fraud and a breach of attorney ethics rules.

The defendant was arrested in January 2012 in Ocean City for talking on a cell phone while driving. She was subject to a 10-year suspension of her driver’s license at the time, according to the court, because of multiple DWI convictions. She pleaded guilty to DWLS in municipal court that March. DWLS is normally a “non-indictable offense,” and the judge sentenced her to 30 days in jail, to be served intermittently.

New Jersey law prescribes enhanced penalties for a DWLS if the underlying reason for the license suspension is a DWI offense. About seven months before the defendant’s plea, in August 2011, a new criminal statute became effective that made the defendant’s DWLS offense an indictable offense, with substantially greater penalties. The statute allows prosecution of DWLS as a fourth-degree crime, as opposed to a traffic offense, if the license suspension was due to DWI, and the defendant has one or more prior DWLS convictions.
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An individual who has made a name for himself publicizing the locations of police checkpoints in Southern California recently settled a wrongful arrest lawsuit against a California city. A police officer arrested him for alleged DWI, he claimed in his lawsuit, after he refused to submit to a field sobriety test. He maintained that he was not impaired, and that the officer had no probable cause to suspect that he was. While we as DWI attorneys would not necessarily encourage anyone to make a spectacle out of their assertion of their constitutional rights, this lawsuit demonstrates how police can infringe on the the rights of drivers during traffic stops, which can lead to dismissal of charges.

The plaintiff, using the name “Mr. Checkpoint,” operates a website that publishes the locations of police checkpoints, where officers stop vehicles at random to check for DWI. He makes this information available to people on the website, via the social media service Twitter, and through text message subscriptions. The practice is reportedly not popular with some law enforcement agencies, but L.A. Weekly noted in 2013 that making this information easily accessible encourages people who might otherwise drink and drive “to think about either staying home to party, finding a designated driver or calling a cab.”

The traffic stop that led to the lawsuit occurred in late 2011. He was pulled over in Santa Monica for allegedly making an illegal right turn. He recorded audio of this incident on his phone. The officer arrested him for DWI when he refused to perform a field sobriety test. He spent the night in jail, his car was impounded, and his dogs, who were in the backseat, were taken to the pound. He was able to retrieve the car and his dogs, and the prosecutors declined to file charges when blood test results showed no alcohol.

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Pretrial intervention (PTI) is a program operated by the New Jersey court system that allows defendants the chance to avoid the ordinary criminal prosecution process. Although it is not available to people charged with driving while intoxicated (DWI), it is still worth understanding because traffic stops and DWI arrests sometimes lead to criminal charges instead of, or in addition to, a DWI charge. The New Jersey Supreme Court recently considered the question of whether the state could deny admission to a PTI program based on prior dismissed charges or arrests. The case, State v. K.S., began with an arrest for alleged DWI, which led to additional criminal charges. The court held that the state cannot infer guilt based only on an arrest or a charge, and therefore it cannot keep a defendant out of PTI based on charges that were dismissed.

Defendants who qualify for the PTI program can avoid criminal prosecution in New Jersey courts. Participants in PTI may be ordered to perform community service, pay restitution, and complete other services. They must also avoid any further criminal trouble during their time in the program. If they complete the program, which can take up to 36 months, the case is dismissed, and they may be eligible to have the charge and arrest expunged from their record. Failure to meet any of these requirements results in the return of the case to the criminal docket.

New Jersey court rules and statutes set out the criteria for prosecutors and PTI program directors to consider regarding admission to the program. The program typically excludes people with prior convictions, people who are on parole or probation, and people who have previously been admitted to PTI or a similar program. DWI and related offenses are considered traffic offenses under New Jersey law, not criminal offenses. Defendants are therefore not eligible for PTI on the basis of a DWI charge.
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When police in New Jersey suspect someone of driving while intoxicated (DWI), they may ask them to take a field sobriety test (FST) before placing them under arrest. A person could “fail” FSTs for any number of reasons besides intoxication, such as injury, weather conditions, or even just standing on a slope. Challenging an officer’s administration of a test, which can significantly affect its outcome, can be extremely beneficial to a defendant’s case. As the first New Jersey lawyer qualified by the National Highway Traffic Safety Administration (NHTSA) to train law enforcement officers to administer FSTs, Evan Levow is in a unique position to assist defendants in DWI cases.

Many people believe that “passing” the FST will allow them to avoid being arrested, but most of the time, police have already made that decision. They usually hope that FST results will provide additional probable cause for the arrest, or that they will serve as circumstantial evidence of intoxication if chemical testing does not provide useful results. The state will try to show that any difference between how an officer explains a test and how a driver performs on it is evidence of impairment. The officer must follow specific guidelines for administering certain FSTs, however, and an error on the officer’s part could invalidate the entire test.

The NHTSA’s Standardized Field Sobriety Test (SFST) consists of three tests, with specific instructions for officers and a scoring system:

– One Leg Stand, in which the officer looks for impaired balance. The driver is instructed to stand with one foot about six inches above the ground while counting aloud, usually for 30 seconds.
– Walk and Turn, which also looks at balance as well as coordination and attention to instructions. The driver is instructed to walk heel-to-toe along a straight line, turn on one foot, and return along the same path.
– Horizontal Gaze Nystagmus (HGN), which refers to the involuntary jerking motion of a person’s eyes during side-to-side movement. The officer might tell a driver to look at the tip of a pen or other object, then follow it back and forth with their eyes. The theory is that HGN will be faster or more pronounced in intoxicated people. New Jersey courts do not allow use of the HGN test as evidence of guilt, as discussed more below. Continue reading

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The U.S. Supreme Court issued a ruling in December 2014 that could have a significant effect on DWI cases in New Jersey. The case involves two fundamental principles of the American criminal justice system. First, law enforcement officers must have reasonable suspicion of a criminal or traffic offense in order to make a traffic stop. Second, it is not a defense to prosecution for a person to claim that he or she did not know something was illegal. What happens, however, when a police officer makes a mistake of law? In Heien v. North Carolina, a defendant argued that a traffic stop that resulted in drug charges was unreasonable because the officer incorrectly thought having only one working brake light was a traffic violation. The court held that the officer did not violate the defendant’s rights, despite not knowing the law, since the mistake was “reasonable.”

An officer pulled the defendant’s vehicle over in April 29, 2009 at about 8:00 a.m. He testified that he saw the vehicle pass on the highway and thought the driver looked “very stiff and nervous.” After following the vehicle for several miles, he noticed that it had only one working brake light. He pulled the vehicle over, believing this to be a traffic violation. The defendant, who owned the vehicle, consented to a search, and the officer found drugs.

The defendant pleaded guilty to drug charges after the trial court denied his motion to suppress the results of the search, reserving the right to appeal. A state appellate court reversed the conviction, finding that the traffic stop was unreasonable because the driver had not broken any traffic laws. The North Carolina Supreme Court reversed that ruling, and the U.S. Supreme Court affirmed the conviction. Continue reading

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The holiday season, starting with Halloween and continuing through Christmas and other winter holidays, always brings stories of unusual events that go “viral” on the internet, including strange or embarrassing DWI arrests. This unwanted, if usually only temporary, fame is yet another consequence of a DWI arrest that happens regardless of the outcome in court. A DWI attorney’s job is not only to represent his or her clients in court, but to help them minimize the impact of an alleged offense on their lives while the court case is pending. Several news stories from the past year, including one in New Jersey, fell into this category. Our intention in discussing them is not to embarrass or make light of anyone, but rather to illustrate some important points of New Jersey DWI law that people need to know at any time of year.

The most recent story occurred in late December 2014, when police in Riverdale, New Jersey claim that they found a man asleep in a vehicle who was dressed as the popular “Elf on the Shelf” holiday toy. Although the vehicle was parked, its engine was reportedly running, the headlights were on, and the stereo was playing loudly. The officers alleged that they noticed a strong odor of alcohol on the man’s breath. They administered a field sobriety test and took him to the station for breath testing. He was issued a summons for DWI and released to a family member.

DWI cases usually begin with a traffic stop based on a police officer’s reasonable suspicion that the driver is impaired. Under New Jersey law, however, officers do not actually have to witness the person driving. In this case, state law enforcement guidelines for DWI cases say that police could infer that the man had been operating the vehicle because of its location in a parking lot, or the fact that its engine was running and the headlights were on. These observations may support probable cause for an arrest, but prosecutors must still prove all of the elements of DWI to obtain a conviction. Continue reading

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New Jersey law directs courts to apply sentencing enhancements for a second driving while intoxicated (DWI) conviction, with additional enhancements for third and subsequent convictions. In certain circumstances, however, trial courts may not use sentencing enhancements when the statute might otherwise require them to do so. A “step-down” provision in the DWI statute, for example, directs courts not to apply sentencing enhancements if enough time has passed since the most recent prior conviction. We recently represented a client who wanted to use the step-down provision, but the trial court would not allow it. It said that he was limited to one use of the step-down provision, and he had already used it once before. The New Jersey Supreme Court ruled in our client’s favor, finding that the DWI statute allows use of the step-down provision more than once.

The step-down provision, found in the last paragraph of Section 39:4-50(a)(3) of the New Jersey Revised Statutes, states that if a person’s second DWI offense occurs more than 10 years after the first offense, the court must treat the second offense as a first offense during sentencing. If a third offense occurs more than 10 years after the second offense, the court must use the sentencing guidelines for a second offense. A 1990 decision from the New Jersey Supreme Court, State v. Laurick, sets another important limit on a court’s sentencing authority. A court may not use a prior DWI conviction to enhance a subsequent conviction if the defendant was not represented by counsel in the prior case.

The defendant in our case had prior DWI convictions from 1981, 1982, and 1994. The trial court applied second-offense sentencing enhancements in the 1994 case, since, while it was technically the third offense, it occurred more than 10 years after the most recent prior offense. Here is where the case can get confusing. The defendant was not represented by an attorney in the 1982 case, so the trial court should not have considered it during sentencing. An appellate court reduced his sentence for the 1994 offense to first-offense levels. Continue reading

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The right to a trial by jury is a fundamental principle of our criminal justice system enshrined in our Constitution. What many people might not know, however, is that jury trials are not guaranteed in all criminal cases. The Sixth Amendment only guarantees a jury trial in criminal cases where the potential penalty is more than six months’ imprisonment. A pair of U.S. Supreme Court decisions, spanning more than a century, established that this restriction extends to DWI cases. Some, but not all, states allow jury trials even when not constitutionally required to do so, but not New Jersey. DWI cases in New Jersey are tried as “traffic offenses” before a municipal court judge.

Article III of the Constitution, which establishes the Judicial Branch of the federal government, states that “[t]he Trial of all Crimes…shall be by Jury.” The Sixth Amendment states that a defendant has a right to trial “by an impartial jury.” These provisions originally only applied to federal criminal cases. The Fourteenth Amendment, ratified after the Civil War, extended the Sixth Amendment’s guarantee of the right to trial by jury in all criminal cases in state courts. The court system took some time, however, to figure out exactly how far this guarantee went.

An 1888 Supreme Court decision, Callan v. Wilson, considered what the word “crime” means as it is used in Article III and the Sixth Amendment. The court applied the definition from English common law, which made a distinction between serious crimes, including misdemeanors and felonies, and “petty offenses.” It found that the Sixth Amendment right to a trial by jury applied to serious crimes at the state level, but not petty offenses. Continue reading

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