Articles Posted in Defending the Case

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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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An arrest for alleged driving while intoxicated (DWI) in New Jersey has serious consequences, even before charges are filed or the case goes to trial. A driver could face license suspension and other administrative penalties that are largely separate from the court procedures for a DWI case. He or she also may face a charge of refusal to submit to chemical testing, and in some cases courts have held that simply not blowing hard enough into a breathalyzer machine could support a refusal conviction. Certain other criminal charges are common in alleged DWI cases, some of which could significantly increase the penalties that a prosecutor might seek in court.

Other Traffic Charges

Many, possibly most, DWI cases begin when a police officer pulls a driver over. An officer must have reasonable suspicion that a traffic offense has occurred for any evidence collected during the traffic stop to be admissible in court. If the officer can prove that he or she witnessed the driver violate a traffic law, such as by speeding, running a red light, or changing lanes without signaling, the stop is probably supported by reasonable suspicion. An officer also may pull over a car if it appeared that the driver was impaired based on how he or she was driving. Once the stop is underway, other evidence, like the “smell of alcohol” so often cited in court, may support a DWI charge.

Since a DWI arrest often originates with another alleged traffic violation, it stands to reason that DWI cases often involve other traffic charges. Many of these are minor offenses, like failing to use a turn signal or avoiding a traffic light, while others, such as driving with a suspended license, are relatively more serious. Even if a driver can prove that he or she was not drinking, he or she could face charges for careless or reckless driving. Continue reading

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The New Jersey Supreme Court, in affirming the reversal of a DWI conviction, cautioned municipal courts throughout the state to keep pretrial suppression hearings separate from actual trials, noting that the two types of proceedings have substantially different purposes. The decision in State v. Gibson, issued on September 16, 2014, involved a conviction by a municipal court based solely on evidence presented at a pre-trial hearing on the defendant’s motion to suppress evidence, instead of at trial. The Appellate Division reversed the conviction and entered a judgment of acquittal. The Supreme Court affirmed the reversal but not the acquittal. It remanded the case for a new trial in municipal court.

A Winslow Township patrolman pulled the defendant over in November 2007 after the defendant allegedly passed his vehicle at a “high rate of speed” and changed lanes without signaling. The defendant reportedly agreed to field sobriety tests, but resisted arrest. He was charged with DWI, reckless driving, and failure to signal. A grand jury indicted him on several counts, including third-degree aggravated assault on a police officer. He pleaded guilty to the first count of the indictment in December 2008, and the rest of the counts were dismissed. The court remanded the motor vehicle charges, including the DWI charge, to the municipal court.

The defendant moved to suppress the evidence obtained in the traffic stop. The municipal court held a hearing on the motion in May 2010, where the patrolman testified regarding the alleged circumstances of the traffic stop. At a continuation of the hearing that October, the defense introduced the video of the stop and claimed that it contradicted the patrolman’s testimony. The court denied the motion to suppress, ruling that the patrolman had reasonable suspicion for the stop and probable cause for the arrest. It immediately moved on to the trial on the merits. Continue reading

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New Jersey law contains two different, but related, provisions related to driving while intoxicated (DWI). The DWI statute addresses the actual alleged act of driving while under the influence of alcohol or another intoxicating substance. The refusal statute deals with drivers who refuse to submit to breath or blood testing to determine the amount of alcohol in their bloodstreams. State law requires police to read a statement to a suspect regarding the consequences of refusing to submit to chemical testing. A recent court decision, State v. Peralta, clarifies whether a failure to read that statement requires a court to dismiss any resulting charges. An unpublished court decision from about four years ago, State v. Tirado, suggested that such failure requires dismissal of all charges, even DWI, but Peralta holds that it only affects the outcome of a refusal charge. Peralta effectively overrules Tirado, which offered a loophole as a sort of defense in DWI cases.

The New Jersey Motor Vehicle Commission has issued a “Standard Statement for Operators of a Motor Vehicle” (“Standard Statement”), which police must recite to a suspect before administering a blood or breath test. Refusal to submit to testing may result in license suspension, a fine, and other penalties. Courts have generally held that reading the Standard Statement is required to obtain a conviction for refusal, but Tirado, a 2010 decision by the Superior Court, Appellate Division, expanded this to a DWI case. The court found that the state had not proven that an officer read the Standard Statement to the defendant before administering a breathalyzer test and partly reversed the defendant’s DWI conviction as a result. Since the decision is unpublished, it is not binding authority in other DWI cases, but it has come up in cases where police made similar omissions.

In Peralta, a municipal judge convicted the defendant of DWI based on evidence from a breathalyzer test that showed 0.19 percent blood alcohol content (BAC), more than twice the legal limit. The defendant, who was not charged with refusal, appealed the DWI conviction in part based on the failure by police to read the Standard Statement before administering the breath test. The court noted that the defendant relied on an unpublished case in making his argument but does not identify the case. It held that the failure to read the Standard Statement was not relevant to the DWI case. Continue reading

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A bill that was recently approved by the New Jersey State Senate Budget and Appropriations Committee (NJSBA) would change the requirements for ignition interlock devices (IIDs) in driving while intoxicated (DWI) cases. Under current New Jersey DWI law, an IID is only mandatory for second or subsequent convictions, or in cases where chemical testing shows a sufficiently high blood alcohol content (BAC). The proposed bill would make IIDs mandatory in all DWI cases across the state. The New Jersey Assembly passed a companion bill in June 2014. A previous version of the bill was passed by the state Senate, but not the Assembly, in 2013.

State law defines an IID as a device that “permit[s] a motor vehicle to be started only when the driver is sober.” The device must be installed on the dashboard of a DWI defendant’s vehicle. Prior to starting the vehicle, the driver must blow into the device, much like with an Alcotest machine or other breathalyzer. The device analyzes the breath sample and, if the BAC is reading is greater than the pre-programmed maximum, it prevents the vehicle’s ignition switch from sending a signal to the starter. In short, the driver may turn the key, but the car won’t start.

If the IID prevents operation of the vehicle, it may continue to do so for some programmed period of time to allow the driver to sober up. The accuracy and reliability of breathalyzer devices is a common issue in DWI cases, and IIDs can present similar problems. State law requires the Motor Vehicle Commission to certify IIDs and maintain a list of approved providers, but the devices require regular maintenance in order to function correctly. Continue reading

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Two recent rulings from a New Jersey court may allow defendants and the public to view police dashboard camera footage from traffic stops. The plaintiffs sought videos from specific stops, both involving alleged police misconduct, under the state’s Open Public Records Act (OPRA). The Ocean County Prosecutor’s Office (OCPO), a defendant in both cases, refused to produce the footage. The judge ruled for the plaintiffs, which could allow the public to view police camera footage without the formal discovery process in a criminal case. For defendants charged with driving while intoxicated (DWI), this means that they could see footage of their traffic stop much earlier in the case.

A New Jersey law signed by the governor in September makes cameras mandatory for all vehicles acquired by police departments after the law takes effect in March 2015. Many police departments already use dashboard cameras, and some are testing cameras worn by officers. These cameras present both advantages and disadvantages for the public. They are widely promoted as a means of preventing police abuses, but the presence of a camera recording every interaction between police and the public has also raised privacy concerns.

The cost of complying with open records requests is a significant factor. Police in Seattle, Washington considered scrapping a plan to equip officers with body cameras after receiving an anonymous request for daily police video updates, including written reports and license plate searches in addition to the videos themselves. He dropped his request upon reaching an unconventional deal with the police department, but the expense of making police videos available to the public could be a concern for other departments that could affect defendants’ rights to the footage. This was not an issue, however, in the two recent New Jersey court decisions. Continue reading

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A New Jersey Senate committee has approved a bill that would amend the state’s driving while intoxicated (DWI) statute to more specifically address driving while under the influence of inhalants. Supporters dubbed the bill “Kimmie’s Law,” after a teenager who died after a car accident with a driver who had allegedly “huffed” dust cleaner. While New Jersey’s DWI statute identifies specific levels of alcohol intoxication, it does not do so for other substances. Testing for inhalants is especially difficult, since the chemicals are not detectable in the bloodstream for long. The proposed bill would make it an offense to drive with any amount of an inhalant in one’s blood. “Huffing” is undoubtedly a serious health problem, particularly among young people who use it as a cheap way of getting high. Applying a “zero tolerance” approach in a criminal statute in this manner, however, presents its own problems.

New Jersey law does not currently provide a distinct definition of “inhalant.” The New Jersey Code of Criminal Justice prohibits “inhal[ing] the fumes of any toxic chemical” for the purpose of intoxication, or possessing a toxic chemical for that purpose. The DWI statute includes the word “inhalant” among a non-exclusive list of substances that can release “toxic vapors or fumes for the purpose of inducing a condition of intoxication.” Examples provided by both statutes include “any glue,” as well as chemicals found in many household cleaning products.

The accident that gave the bill its name occurred in 2007, when an 18-year-old driver veered off the road and collided with a street sign. Her 16-year-old passenger sustained fatal injuries. According to a toxicology report, the driver was under the influence of an inhalant at the time of the accident. The driver eventually pleaded guilty to recklessly causing bodily injury to a passenger. The state also charged her with vehicular homicide, but not DWI. The prosecutor in the case said that it was impossible to prove with “scientific certainty” that the driver met the statutory requirements for “intoxication.” Continue reading

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The act of flashing one’s headlights or high beams at another driver can have many different meanings, one of which is to warn that a speed trap is ahead. Some states have enacted laws prohibiting this practice, ostensibly for public safety. New Jersey’s statute, for example, prohibits flashing headlights that are “projected into the eyes of the oncoming driver.” These laws tend to discourage communication among drivers about speed traps, and they give police a reason to pull people over. These two purposes came into direct conflict in a recent DWI case in New Mexico. A woman successfully argued that flashing her high beams at an oncoming car, which turned out to be a police vehicle, was protected free speech, and that the officer therefore lacked probable cause to pull her over.

The New Mexico woman was pulled over at around 10:00 p.m. on January 25, 2014. She stated that she thought the oncoming car had its high beams on, so she quickly flashed her high beams back and honked her car horn. The other car turned around, activated its emergency lights, and pulled her over. She was charged with violating a high-beam ordinance as well as aggravated DWI. The judge granted her motion to suppress evidence of her field sobriety test and chemical test results, finding that she had engaged in speech protected by the First Amendment. This resulted in the dismissal of the entire case. She has also filed a lawsuit against the city and the officer for civil rights violations.

Drivers in several states have successfully challenged high-beam citations on free-speech grounds. A federal judge in Missouri granted a permanent injunction in April 2014 that prohibited the town of Ellisville from enforcing a law against flashing headlights to warn of speed traps, finding that the plaintiff was likely to prevail on his free speech claims. An Oregon judge ruled that high-beam charges violated a driver’s free-speech rights under the state constitution, and a Florida judge issued a similar ruling in May 2012 applying the U.S. Constitution. Continue reading

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The arrest of a man found sleeping in his car on a New Jersey road for alleged driving while intoxicated (DWI) raises a rather obvious question:  can police arrest someone for DWI if they did not actually see the person driving? New Jersey’s DWI statute, which prohibits “operat[ing] a vehicle” while intoxicated or under the influence of illegal drugs, does not actually require an arresting officer, or anyone else, to witness a suspect driving. It does, however, require other evidence to establish that a person had been driving, or that he or she intended to drive and was about to do so, while under the influence of alcohol or drugs.

Police in North Plainfield, New Jersey reportedly responded to a report of someone sleeping in his car early one morning in late September 2014. Officers found the car parked on the side of a road. They claimed that they had to shout to wake the man up, and that he told them he thought he was in a parking lot. Two children were also reportedly in the car with the man. His blood alcohol content (BAC) was allegedly 0.13 percent, which resulted in charges of both DWI and child endangerment. The latter charge depends on the state’s ability to prove the former. Since no witnesses have claimed to have seen the man driving, this will depend on whether the state can prove beyond a reasonable doubt, based on the circumstances, that the man had operated the vehicle.

Mr. Uquillas-Tapia has several defenses to this situation.

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