Defending the Case

September 23, 2021

What Happens After a DWI Conviction in New Jersey?

In New Jersey, driving while intoxicated (DWI) is a serious offense that can carry significant penalties. A DWI defense attorney’s job is to advocate for and protect their client’s rights with both prosecutors and the court. Often, we are able to get a DWI charge reduced to something less serious, or even dismissed altogether. A conviction is not necessarily the end of a case, though. A defendant who has been convicted of DWI might have several options for continuing to fight for their rights.

How DWI Convictions Happen

Before discussing a DWI defendant’s options after a conviction, it is important to understand how convictions occur. In New Jersey DWI cases, a conviction can happen when:
– A defendant pleads guilty; or
– A municipal court judge finds the defendant guilty after a trial.
A defendant can enter a conditional guilty plea, which allows them to appeal the verdict on certain grounds.

Post-Conviction Relief

Appealing a conviction is not the only way to continue fighting. Post-conviction relief (PCR) gives defendants an opportunity to challenge a conviction in the same municipal court that found them guilty.
Continue reading

September 23, 2021

Testimony in New Jersey DWI Cases: The Hearsay Rule

by Evan M. Levow

In any case involving alleged driving while intoxicated (DWI) in a New Jersey municipal court, the state must prove the defendant’s guilt beyond a reasonable doubt. The New Jersey Rules of Evidence establish what kinds of evidence courts may consider, and what attorneys must do to get their evidence admitted. Testimony from various witnesses occurs in every trial. An important limitation on testimony during a trial is known as the “hearsay rule.” You may have heard this term if you watch any lawyer shows on television. What does the hearsay rule actually do, though? The following is an overview of the hearsay rule, and how it can help both sides in different ways in New Jersey DWI cases.

Evidence in New Jersey DWI Cases

New Jersey’s DWI statute allows prosecutors to prove that a defendant was impaired by alcohol or drugs in two ways. Both require testimony.

The state can have the arresting officer testify under oath about the defendant’s behavior or appearance at the time of their arrest. Perhaps, for example, the defendant was slurring their speech, or had bloodshot eyes.
Continue reading

June 24, 2021

The Way Blood Samples Are Obtained and Tested Can Make a Difference in New Jersey DWI Cases

by Evan M. Levow

Police and prosecutors can use blood alcohol content (BAC) evidence to prove that a defendant charged with driving while intoxicated (DWI) in New Jersey was under the influence of alcohol. State law presumes that a person was too impaired to drive safely if their BAC was 0.08 percent or higher. Evidence of BAC at or above this “legal limit” does not automatically mean, however, that the state has met its burden of proving guilt. When police are not able to conduct breath testing for BAC, such as when a driver suspected of DWI must go to the hospital after an accident, they might test a sample of the person’s blood instead. Blood testing presents different challenges for police, and opportunities for defendants to dispute the evidence against them.

Breath vs. Blood Testing

The New Jersey DWI statute uses very broad language to define the offense and state what kind of evidence the state may use to prove that a person was “under the influence of” alcohol. State and federal courts have filled in many details regarding the collection of breath, blood, or urine samples to test for BAC. Police throughout New Jersey use a device called the Alcotest to test breath samples at police stations. The device analyzes the breath sample and reports results in a few moments.

A medical professional must draw a blood sample for BAC testing. This usually occurs at a hospital. The sample must then be transported to a laboratory. Prosecutors must show a clear chain of custody for the sample, and they must be able to establish that no contamination occurred at any point.
Continue reading

March 5, 2021

New Jersey Court Vacates DWI Conviction Because of Defective Plea

by Evan M. Levow

A person charged with driving while intoxicated (DWI) in New Jersey might decide to plead guilty, instead of going to trial. Regardless of why they make that decision, the court must follow procedures set by state law that ensure protection of the defendant’s rights. This includes a conversation between the defendant and the judge, known as the “plea colloquy,” in which the judge determines the legal validity of the guilty plea by asking the defendant questions and advising them of their rights under state law, the New Jersey Constitution, and the U.S. Constitution. If the information obtained during the plea colloquy does not meet the standard set by the New Jersey Rules of Court, the plea could be ruled invalid. The Appellate Division reached this conclusion in a decision issued in late 2020, finding that the judge never asked the defendant to acknowledge certain key facts of the prosecution’s case.

State law defines DWI in two ways. Both definitions involve operation of a motor vehicle while impaired by alcohol or drugs. If the state can prove that a defendant had blood alcohol concentration (BAC) of at least 0.08 percent while they were driving, or soon afterwards, this is considered evidence of legal impairment. Without BAC evidence, prosecutors must prove impairment through other evidence, such as testimony from an arresting officer about the defendant’s driving, behavior, or appearance.

Rule 7:6-2(a)(1) governs guilty pleas in municipal court cases, including New Jersey DWI cases. A municipal court judge cannot accept a guilty plea without conducting a plea colloquy to determine that the defendant is making the plea voluntarily, that they have an “understanding of the nature of the charge and the consequences of the plea,” and that they acknowledge the “factual basis for the plea.” The judge can establish each of these by asking the defendant questions. If the judge is not satisfied that the defendant meets these criteria, they should not accept the defendant’s guilty plea.

September 22, 2020

New Jersey Prosecutors Dismiss DWI Charge in Exchange for Plea to Other Traffic Offense

by Evan M. Levow

A conviction for driving while intoxicated (DWI) in New Jersey can result in a range of penalties, including driver’s license suspension, a fine, use of an ignition interlock device (IID), and possibly even jail time. Under New Jersey law, DWI is classified as a motor vehicle offense rather than a criminal offense. This means that municipal courts hear DWI cases, and the maximum penalties for a conviction are less than they would be in many criminal cases. This is not to say, however, that a DWI conviction is not a very serious matter. Since municipal courts hear most cases involving motor vehicle offenses, a defendant charged with DWI might face charges of other motor vehicle offenses as well. Prosecutors might, in some cases, be willing to dismiss the DWI charge in exchange for a guilty plea to a different offense. This is not always an option, but it can be a way to avoid the more onerous penalties that might come with a New Jersey DWI conviction.

Unlike many other motor vehicle offenses in New Jersey, the penalties for DWI increase based on the number of prior convictions an individual has during the ten years before the current alleged offense. A first DWI conviction, with relatively low blood alcohol content, results in a fine of $250 to $400, possible jail time of up to thirty days, and suspension of one’s driver’s license until they install an IID in their vehicle. A third or subsequent conviction within ten years results in a mandatory jail sentence of 180 days, an eight-year license suspension, and a $1,000 fine.

Many DWI cases originate with a traffic stop by police. An officer must have reasonable suspicion of a motor vehicle or criminal offense in order to stop someone. This could include allegedly running a stop sign or a red light or driving erratically. In such cases, the state might charge a defendant not only with DWI, but also with whatever alleged motor vehicle offense or offenses prompted the traffic stop in the first place. In most cases, the potential penalties for other motor vehicle offenses are not as severe as they are for DWI.

July 20, 2020

New Jersey DWI Law Does Not Require Police to Witness Actual Driving by a Defendant

by Evan M. Levow

The law behind driving while intoxicated (DWI) in New Jersey is more complicated than it might appear at first glance. Multiple court decisions interpreting the DWI statute have held that prosecutors do not have to provide direct evidence that a person was driving. They only need to prove that a person had both the intent and the opportunity to drive while impaired by alcohol. The New Jersey Superior Court, Appellate Division affirmed this view of the DWI statute in a February ruling. It denied the appeal of a defendant who was convicted after police found him sleeping in his car with the engine running. This is an important decision for both DWI lawyers and the general public.

New Jersey’s DWI statute establishes a two-part definition of the offense. The state must prove that a defendant (1) operated a vehicle (2) while impaired by drugs or alcohol. Prosecutors can prove the second point in several ways, including evidence of blood alcohol content (BAC) and eyewitness testimony from police about the defendant’s appearance and behavior. Much discussion of DWI defenses focuses on how the state proves impairment. Maybe the police failed to maintain the Alcotest device adequately, and the BAC evidence should be thrown out. Perhaps the officer who pulled a defendant over lacked a legal justification for the stop. Sometimes, however, defendants dispute the first element of the offense.

As the Appellate Division notes in its February decision, New Jersey courts have taken a broad view of what it means to “operate” a vehicle. In a 1987 decision, the New Jersey Supreme Court stated that “a pragmatic definition of this term is necessary” in order to fulfill the purpose of the DWI statute, which is “to deal with the risk that intoxicated drivers will cause harm to themselves and to others.” The court found that intoxicated drivers can pose this sort of risk “even before [they] may have put [their] car in motion.” It cited a 1963 decision, in which it held that “a person may be “operating” a motor vehicle…even when the vehicle has not been moved.”

February 22, 2020

Appellate Division Rules on Fourth and Fifth Amendment Challenges to New Jersey DWI Conviction

by Evan M. Levow

The Fourth and Fifth Amendments to the U.S. Constitution protect people against misconduct by police and prosecutors. In cases of suspected driving while intoxicated (DWI), New Jersey police are bound by various decisions of the U.S. and New Jersey Supreme Courts that apply these constitutional rights. Police cannot stop a person’s vehicle, for example, unless they have reasonable suspicion of DWI or other unlawful activity, or as part of an established temporary DWI checkpoint. A decision issued by the New Jersey Superior Court, Appellate Division in September 2019 addressed a different situation, which is less common in DWI cases. Police entered the defendant’s home, questioned him there, and then arrested him for DWI. The court considered whether this violated his rights under the Fourth or Fifth Amendments.

New Jersey’s DWI statute provides prosecutors with two ways to prove that a defendant was under the influence of alcohol or other drugs. If breath, blood, or urine testing shows blood alcohol concentration (BAC) of 0.08 percent or higher, state law presumes the person to be intoxicated. Even without BAC evidence, though, police and others can testify about their observations of a defendant’s appearance, odor, and behavior, to establish intoxication.

The Fourth Amendment requires police to obtain search warrants based on probable cause. Courts have identified numerous exceptions that allow police to enter private property and conduct searches without a warrant. They must be able to convince a judge that the search fits within an identified exception. The Fifth Amendment guarantees the right against self-incrimination. Police cannot coerce a person to confess to a crime, and prosecutors cannot compel a person to implicate themselves. A defendant can challenge the constitutionality of a search or arrest by filing a motion to suppress evidence. If a judge finds a violation of constitutional rights, any evidence obtained as a result is suppressed, meaning prosecutors cannot use it at trial.

November 19, 2019

The “Plain Smell Doctrine” in New Jersey DWI Cases

by Evan M. Levow

In order to prove guilt in a case of alleged driving while intoxicated (DWI) in New Jersey, the state must be able to justify all of the police’s actions leading to the DWI charges. This includes the officer’s decision to stop the defendant’s vehicle, the basis for conducting an investigation, and the decision to place the defendant under arrest. The Fourth Amendment to the U.S. Constitution generally prohibits warrantless searches and seizures, although numerous exceptions apply. Courts have held that evidence in a police officer’s “plain view” may justify a warrantless search. Similarly, odors that are within an officer’s “plain smell,” such as the smell of alcohol emanating from a vehicle, may serve as a basis for suspecting a driver of DWI.

The “plain view doctrine” holds that police may conduct a limited search without a warrant if contraband or other evidence of unlawful activity is plainly visible to them. For example, if an officer pulls a car over for speeding, and they can see a bag of drugs sitting in the passenger seat, they may be able to search part or all of the vehicle without a warrant. The “plain smell doctrine” gives police a limited right to conduct a warrantless search based on odors that suggest illegal conduct. This often involves the odor of alcohol or marijuana. A 2018 ruling by the New Jersey Appellate Division held that merely smelling something is not a “search” within the meaning of the Fourth Amendment. “[A]n officer standing outside of an automobile who smells the odor of marijuana emanating from within it” the court held, “has not conducted a ‘search.’”

An officer’s testimony about smell might not be enough, by itself, to justify an investigation or arrest. Police rarely stop a vehicle because of an alleged odor of alcohol, if only because smelling a moving vehicle is exceedingly difficult. Police must be able to justify the traffic stop before odor-related evidence is even a factor. In a 2019 ruling, the Appellate Division considered a defendant’s challenge to the arresting officer’s request to conduct field sobriety tests. The court recounted the officer’s testimony about the defendant’s driving, which reportedly included weaving and a “California stop,” provided reasonable suspicion for the stop. At that point, the defendant’s appearance, along with the smell of alcohol, provided probable cause for a DWI investigation.

October 16, 2019

How New Jersey Police Use Field Sobriety Tests in DWI Investigations

by Evan M. Levow

Police in New Jersey have many ways to build a case for driving while intoxicated (DWI). They can establish probable cause for an arrest by instructing a suspect to perform field sobriety tests (FSTs). A “perfect” performance on FSTs is essentially impossible and is unlikely to help someone avoid arrest regardless. Defending against New Jersey DWI charges that include alleged failed FSTs means challenging whether police officers correctly administered the tests. A Pennsylvania town recently sought volunteers for an unusual form of police training. New Jersey police have not yet asked for volunteers to get drunk so officers can practice administering FSTs, but the outcome of the Pennsylvania training may change that.

State law allows prosecutors to make a case with evidence of impairment besides blood alcohol content (BAC). The DWI statute defines the offense, in part, as driving a motor vehicle “while under the influence” of alcohol or drugs. Eyewitness testimony from officers, including FST performance, is often the main evidence presented by the state.

The National Highway Traffic Safety Administration (NHTSA) has established a set of standardized FSTs that most states have adopted. The set of standardized FSTs consists of three tests:
1. One-Leg Stand: The suspect must raise one foot about six inches off the ground and hold it there.
2. Walk and Turn: The suspect must walk a straight line, keeping their heel to their toe with each step, for a total of nine steps. Then, they must turn 180 degrees and repeat the process until they return to the starting point.
3. Horizontal Gaze Nystagmus: The officer holds a pen or other object at a constant distance from the suspect’s face while moving it from side to side. The suspect must follow the object with their eyes without moving their head. The officer is looking for involuntary eye movement, known as nystagmus, supposedly associated with intoxication.

September 16, 2019

Possible Legalization of Marijuana in New Jersey Raises Questions About Evidence in DUID Cases

by Evan M. Levow

New Jersey has developed an extensive body of law addressing the investigation and prosecution of suspected driving while intoxicated (DWI), at least when the substance in question is alcohol. Testing the amount of alcohol present in a person’s system, known as blood alcohol concentration (BAC), is a highly imperfect process, which is prone to constant errors. Despite its many flaws, it is still a better system than anything available for determining whether a driver was impaired by other drugs. Currently, New Jersey prosecutors pursuing alleged driving under the influence of drugs (DUID) must rely on (1) chemical tests with no specific threshold amount to determine impairment, and (2) the testimony of police officers purportedly trained to identify outward signs of intoxication by various drugs. As legislators continue to consider the New Jersey Cannabis Regulatory and Expungement Aid Modernization Act (NJCREAMA), questions will continue to abound about how to enforce DUID laws involving marijuana, and how to defend people charged with that alleged offense. If you have been charged with a DWI, it is important that you speak with a New Jersey DWI attorney as soon as possible.

In cases involving alcohol, New Jersey’s “legal limit” of 0.08 percent BAC creates a presumption of impairment. This is often known as per se DWI. New Jersey law has no specific threshold amount for marijuana or any other drug in DUID cases. Police can seek a warrant to test samples of blood or urine, but that only indicates whether or not a suspect had a particular drug in their system at the time the sample was taken. Prosecutors usually must produce other evidence to establish impairment. This often involves testimony by police officers who receive specialized training as “drug recognition experts” (DREs).

In cases involving alleged marijuana impairment, chemical testing evidence and DRE testimony may conflict with one another. Marijuana can show up in blood or urine tests long after its effects have worn off. Several recent New Jersey cases have relied on chemical tests allegedly showing the presence of marijuana in a driver’s system, despite testimony from eyewitnesses, including police officers, who did not notice any signs of impairment.