Articles Posted in Defending the Case

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The Appellate Division of the New Jersey Superior Court ruled in State v. Lawrence that a defendant should not have received an enhanced sentence for driving while intoxicated (DWI), even though he had two prior convictions. New Jersey law increases the penalties for second, third, and subsequent DWI convictions, but there are exceptions. The defendant relied on two facts in support of his argument against enhanced penalties. He was not represented by counsel during his first DWI case, and both his first and second DWI cases occurred more than 10 years before the current case. The Appellate Division found that, under a New Jersey statute and a New Jersey Supreme Court decision, these facts required the trial court to sentence the defendant as a first offender.

The defendant pleaded guilty to DWI before a municipal judge, after he admitted to drinking “two alcoholic beverages and two beers” before driving. The defendant had two prior DWI convictions from 1990 and 1994. Although this was his third offense, the judge sentenced him as a second offender on August 30, 2012.

New Jersey’s DWI statute imposes enhanced penalties for a second, third, and subsequent convictions. It makes exceptions, however, if enough time passes between convictions. The DWI statute, in § 39:4-50(a)(3), states that if the third offense takes place more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes. Since about 18 years elapsed between the defendant’s second and third offenses, the court applied the sentencing guidelines for a second offense. Continue reading

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New Jersey law deals very seriously with the traffic offense of driving while intoxicated (DWI). An arrest for DWI can result in a license suspension, if the State can prove the offense in court beyond a reasonable doubt. However, a person does not even need to be driving a vehicle, nor do they need to be intoxicated, to be charged with DWI under New Jersey law. The traffic offense of DWI also includes permitting another person to operate a vehicle while under the influence of drugs or alcohol. The New Jersey Supreme Court has considered cases involving this part of the statute several times and has consistently held that it is a key component of the state’s objective of preventing and punishing drunk driving.

Under New Jersey law, the offense of DWI is defined primarily 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.” The statute also includes “permit[ting] another person [who meets the above definition] to operate a motor vehicle.” The New Jersey Supreme Court discussed this part of the statute in State v. Hessen in 1996, noting that “a person who allows an intoxicated person to drive” is “as blameworthy as the drunk driver.” State v. Kashi held that the “permitting” portion of the statute is not a separate offense from DWI, but rather an “alternative evidential method” of proving the offense of DWI.

Civil liability for damages caused by a drunk driver are fairly well-known, such as if a social host or bar serves alcohol to a visibly intoxicated person. The New Jersey Supreme Court affirmed this view in the 1984 case Kelly v. Gwinnell. Imposing quasi-criminal liability, however, requires a higher standard of proof than in a civil case. The statute does not make it clear what constitutes “permitting” an intoxicated person to operate a vehicle. In theory, anyone who comes into contact with an intoxicated person could inquire as to whether they intend to drive, but it would be unwieldy and unreasonably to impose quasi-criminal liability on all of those people. Several New Jersey courts have addressed the elements that a prosecutor must prove beyond a reasonable doubt. Continue reading

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A decision issued by the U.S. Supreme Court last year limits the ability of police to take a blood sample from a DWI suspect without consent or a warrant. Missouri v. McNeely, 133 S.Ct. 1552 (2013). The Fourth Amendment protects people from unreasonable searches and seizures, and generally requires law enforcement to obtain a warrant before searching private property. Police can claim “exigent circumstances” to justify a warrantless search, meaning that in a specific emergency situation, they cannot take the time to obtain a warrant. The McNeely case addressed claims by police that the human body’s process of metabolizing alcohol was an exigent circumstance that justified taking a blood sample without a warrant. In response to the decision, the New Jersey Supreme Court has modified its procedures for search warrant requests to ensure that judges are available to issue warrants.

The defendant in McNeely was stopped by a highway patrolman for speeding. The officer claims that defendant did not perform well in a field sobriety test, and he refused a breath test. En route to the police station, the defendant refused a breath test again, so the officer diverted to a hospital and directed a hospital technician to take a blood sample. The defendant did not consent to having blood drawn, and the officer did not obtain a warrant. Lab testing showed blood alcohol content (BAC) of 0.154 percent, almost twice the legal limit of 0.08 percent.

The state charged the defendant with driving while intoxicated, but the court granted the defendant’s motion to suppress. It held that the warrantless blood test violated his Fourth Amendment rights. When the Missouri Supreme Court affirmed the decision, the U.S. Supreme Court took the case in order to resolve a conflict with its own prior decision in Schmerber v. California, 384 U.S. 757 (1966). That case held that an officer might reasonably conclude that the breakdown of alcohol in the bloodstream constituted “exigent circumstances,” id. at 770-71, but limited its holding to the specific circumstances of the case. In McNeely, the court rejected establishing a “per se rule” that alcohol metabolism justifies a warrantless blood test. 133 S.Ct. at 1561. Continue reading

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The New Jersey Superior Court, Appellate Division considered the appeal of a DWI defendant in State v. Lobo that challenged the admissibility of Alcotest results. The defendant argued in part that the state’s failure to provide him with complete repair and maintenance records for the device used to test his blood alcohol content (BAC) entitled him to relief on appeal. The state’s case relied on results from an Alcotest device, which has been sufficiently controversial that the state plans on retiring it. The court rejected each of the defendant’s points of error and affirmed the conviction.

The defendant was arrested on April 29, 2011 after a traffic stop. At a State Police barracks, officers administered a breath test using a Dräger Alcotest 7110 MK III-C device. The test showed a BAC of 0.13 percent, and the defendant was charged with DWI. The court ordered the state to produce repair records and other information regarding the Alcotest device. Prosecutors later informed the court that some repair records were not available, leading the court to modify its order to require production of “repair records that exist.”

Based on the information obtained about the device, the defendant moved to dismiss the case or exclude the Alcotest results on multiple grounds. The trial court denied the defendant’s motion. The defendant entered a conditional guilty plea, which allowed him to preserve the issues raised in his motion to dismiss for appeal. Continue reading

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A series of errors by a private laboratory testing company has called hundreds of pending DWI cases into question. Blood samples sent to the lab were reportedly mislabeled, or were subject to other paperwork errors, resulting in uncertain test results. Prosecutors are trying to determine whether retesting is possible, while DWI defendants and their advocates remain skeptical that the state has revealed all of the damage done by the lab’s errors. Laws defining the offense of DWI generally do not require evidence of blood alcohol content (BAC) obtained through blood or breath testing, but chemical evidence is generally considered the simplest way for prosecutors to prove intoxication.

The district attorney’s office in San Antonio, Texas contracted with the laboratory, which is located in the Dallas/Fort Worth area, to test samples taken by police in DWI cases. The lab reportedly sent a letter to the DA’s office in May 2014 informing it that an analyst had made multiple errors in paperwork affecting hundreds of samples. The DA’s office has reportedly not made the full extent of the errors public, but one error by the analyst, who has been terminated by the lab, involved incorrect labeling of 350 samples.

The lab has reportedly sent test results to the DA’s office with notices that they cannot definitively link the results to a specific sample, although the DA’s office has denied that results have actually been mixed up between cases. The office has also denied that any samples were contaminated by the lab, although news media have reported that some documents make reference to contaminated equipment. The situation has left both prosecutors and criminal defense attorneys uncertain how to proceed with pending DWI cases. Continue reading

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The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right to a speedy trial. If this right is denied, the court may dismiss the charges. The New Jersey Supreme Court considered this issue in New Jersey v. Cahill, ruling in early April 2013 that a sixteen-month wait for a DWI trial in municipal court denied the defendant’s right to a speedy trial. Applying a four-part test developed by the U.S. Supreme Court in 1972 in Barker v. Wingo, the court affirmed the dismissal of the DWI charge.

The defendant was ticketed on October 27, 2007 for driving while intoxicated and other motor vehicle charges. Six months later, on April 10, 2008, a grand jury indicted him for fourth-degree assault by auto. The defendant pleaded guilty to the assault by auto charge in Camden County Superior Court on September 19, 2008. A judge sentenced him to one year of probation, plus fines and other penalties, on November 14, 2008.

That same day, the Camden County prosecutor sent written notice to the Pennsauken Municipal Court administrator that the Superior Court was remanding the October 2007 motor vehicle tickets to the municipal court, and that the defendant had waived double jeopardy. The municipal court notified the defendant in March 2010 that it had set the DWI and other motor vehicle charges for trial on April 12, 2010. This date was sixteen months after notice of remand was sent to the municipal court, and almost twenty-nine months after the date of the tickets. Continue reading

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As a New Jersey DWI lawyer, my goal is always to do the best job for my client, which means seeking to get the DWI dismissed. If that cannot be accomplished based on the circumstances of the case, then the next goal is to seek a reduction of the suspension time.

In first offense DWI cases in New Jersey, there is a two tiered sentencing structure.

If your breath or blood alcohol result was 0.10% or greater, then you are an alleged second-tier offender. This means, that if convicted, you face a license suspension of 7 to 12 months. If your breath breath or blood alcohol result was 0.15% or higher, then you are also subject to mandatory installation of an ignition interlock device.

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A New Jersey DWI charge is very serious and has significant consequences if you are convicted. As a result, your defense must be thoroughly planned and executed to obtain the best results possible.

It is always the goal of the qualified DWI defense attorney to attempt to have a DWI charge dismissed. The success of having the DWI dismissed, of course, depends on the specific facts and circumstances of the case and the overall situation.

Your DWI lawyer must always be ready to go to trial in your case. That doesn’t mean that your case will end up in trial, however if your lawyer is ready to actually try your case, the prosecutor, police officer, and judge may look at your circumstances differently.

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I just finished meeting with a NJ DWI client, prepping him for a potential trial. The client said to me that when he chose my law firm, he had spoken with other attorneys trying to decide which law firm was best for him. He wanted to know whether I was going to “show him the beef, and not just the sizzle”. I looked quizzically at him, and asked him what that meant.

He told me that when researching my firm and discussing his options with the other lawyers he was interviewing, one lawyer had the nerve to say that the “high-priced lawyers are all sizzle and no beef”. The lawyer went on to say that he could do the same job that the more expensive lawyers do at half the cost.

During the balance of the prep time, we discussed “the beef”. We discussed how I will defend his case at trial, how I will not back down, and how I will fight for him until the very end. That “sizzle” is the beef. When hiring a lawyer, the client must be certain that that lawyer and law firm will follow through on his or her behalf. In other words, the potential client must make sure that the lawyer and law firm will fight all the way and try a case. You may not end up a trial, but you want to make sure that the lawyer you hire is preparing your case as if it will go to trial. That is the best way to assure that your case is prepped properly and fought fully.

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In a New Jersey DWI case, the prosecutor must prove the basic elements of the offense. The simplest of those elements is whether the individual arrested actually operated the motor vehicle.

Often, New Jersey DWI arrests are made as a result of tip call, or someone calling into the police department reporting an erratic driver. The caller will sometimes give the license plate number of the vehicle, which can then be traced to the owner’s residence. If the police then locate the car in the driveway of the residence, without that driver in the vehicle, there is a question as to who operated the vehicle. Unless the caller can identify the driver, or if the driver admits to operating the vehicle, the state will have a difficult, if not impossible time, in establishing who operated the vehicle.

Even if operation is established, the state must still prove that the operator drove the vehicle while intoxicated. Depending on how long the vehicle was stationary at the residence, it may be difficult for the state to establish that the driver did not drink alcohol once the motorist arrived at the residence.

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