Defending the Case

June 30, 2017

DWI Defendant Asserts Necessity Defense in New Jersey Court

The state has the burden of proving a defendant’s guilt beyond a reasonable doubt in New Jersey criminal cases, as well as cases involving motor vehicle offenses like driving while intoxicated (DWI). Some defenses that a defendant can raise shift the burden of proof, requiring the defendant to produce evidence in support of their defense. These are known as affirmative defenses. The defendant’s burden of proof for an affirmative defense is a preponderance of the evidence, which is lower than the state’s burden. The affirmative defense of necessity, or justification, requires proof by a preponderance of the evidence that their commission of the charged offense was necessary, under the circumstances, to prevent an even greater harm. The New Jersey Appellate Division recently considered how this applies in DWI cases in State v. Han.

New Jersey defines the necessity defense in broad, rather unhelpfully technical terms, stating that an act that might constitute a criminal offense could be “justifiable by reason of necessity to the extent permitted by law.” Court rulings have crafted more practical guidelines for the justification defense, but they do not necessarily apply in DWI cases. As the court notes in Han, DWI is a motor vehicle offense, but the statute defining the necessity defense is found in the New Jersey Code of Criminal Justice. Not all protections afforded in criminal cases are available in motor vehicle cases.

June 14, 2017

Dismissal of Appeal in New Jersey DWI Case Reversed, Found to Be Abuse of Discretion

by Evan M. Levow

Defending against a charge like driving while intoxicated (DWI) in New Jersey requires knowledge of the DWI statute and all of its elements and requirements, as well as the court system’s procedures, rules, and schedules. The state is obligated to prove every element of the offense of DWI beyond a reasonable doubt. Both prosecutors and defendants are obligated to follow a court’s procedural requirements regarding matters like filing deadlines and court appearances. Courts may impose sanctions on a party that fails to follow these requirements, but the extent of these sanctions is limited. The New Jersey Appellate Division recently reviewed a lower court’s dismissal of a DWI appeal in State v. Figueroa. It found that the court exceeded its authority by dismissing the appeal based solely on the defendant’s absence from the courtroom for a single hearing.

New Jersey’s DWI statute requires the state to prove that a defendant was operating, had recently operated, or imminently intended to operate a motor vehicle while either “under the influence” of alcohol or drugs, or with a blood alcohol content of 0.08 percent or greater. Prosecutors may use evidence like BAC test results or testimony from police officers who observed the defendant to meet their burden of proof, but the time frame in which they can do this is limited.

Once prosecutors have filed DWI charges, the court’s scheduling system largely takes over. Once a hearing, trial, or other matter has been placed on a court’s docket, neither party can change the setting without the agreement of the other party or the approval of the court. Courts have authority to sanction parties or attorneys who miss deadlines or court appearances.

May 14, 2017

New Jersey Appellate Court Rules that Evidence in DWI Trial Was Insufficient

by Evan M. Levow

In any trial for a criminal or motor vehicle offense in New Jersey, the state has the burden of proving each element of the offense, as defined by statute, beyond a reasonable doubt. If the state fails to prove every element of a charged offense, a judge or jury is obligated to acquit the defendant. The New Jersey Appellate Division recently reversed a conviction for driving while intoxicated (DWI), finding in State v. DeCicco that the prosecution failed to prove an essential element of the offense at trial.

The elements of an offense typically consist of factual circumstances, such as a particular act by the defendant at a particular time and place, and a mental state, such as proof that the defendant acted with intent rather than with negligence. Mental state, also known as mens rea, is not a required element of DWI in New Jersey, although courts sometimes accept evidence of “intent to drive” in the absence of evidence that a defendant was actually driving. At a minimum, prosecutors must prove two essential elements of DWI:

(1) the act of “operat[ing] a motor vehicle”; and
(2) the commission of that act in one of two circumstances: (a) “while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug,” or (b) with a blood alcohol content (BAC) of at least 0.08 percent.

April 14, 2017

Appellate Court Considers Whether Judges May Consider Acquitted Conduct as Evidence in New Jersey DWI Case

by Evan M. Levow

The state can offer various forms of evidence to prove that a defendant charged with driving while intoxicated (DWI) was in fact impaired by alcohol or drugs, including a blood alcohol content (BAC) of 0.08 percent or greater. New Jersey law assists police and prosecutors by making refusal to submit a breath sample for BAC testing a separate offense. In an appeal of a DWI conviction, a defendant raised a question about whether a court can consider evidence related to a refusal charge that resulted in an acquittal. The defendant in State v. Pryslak had been acquitted of refusal, but the Law Division had considered evidence related to that case as “evidence of consciousness of guilt” of the DWI charge.

Even without BAC evidence, prosecutors can establish impairment through other means, such as witness testimony. This often involves having an arresting officer testify about their observations at the time of the arrest or shortly afterwards. If a defendant was driving erratically and exhibited outward signs of intoxication when questioned by an officer, this can serve as evidence of impairment. Since police are trained to identify intoxicated people, courts tend to credit their testimony more than that of other individuals who might have witnessed a person driving or behaving in a way that suggested intoxication.

The offense of refusal to submit to breath testing has different elements and therefore requires different types of evidence. The law allows a municipal judge to convict a defendant of refusal even if they did not outright refuse to provide a breath sample. Police must follow specific procedures, outlined by statute and the New Jersey Supreme Court’s decision in State v. Chun. This includes a 20-minute observation period prior to administering a breath test, during which time the defendant cannot place anything in their mouth. Evidence that a defendant refused or intentionally failed to follow police instructions, such as by repeatedly interfering with the observation period or failing to blow into the testing device properly, could serve as evidence of guilt of refusal.

March 19, 2017

DWI Defendant Alleges Violation of New Jersey Rules Regarding Sequestration of Witnesses

by Evan M. Levow

The legal systems of the U.S., New Jersey, and other states have developed rules and procedures regarding trials. The New Jersey Rules of Evidence (NJRE) establishes standards for the admissibility of various types of evidence, including testimony and documentary evidence, as well as procedures for questioning witnesses at trial. Any party to a case can ask the court to sequester witnesses, meaning that witnesses expected to testify at trial cannot see other witnesses’ testimony or discuss the case with others. The Appellate Division ruled last year on a driving while intoxicated (DWI) defendant’s claim that prosecutors violated a sequestration order in State v. McMahon.

NJRE 615 simply states that any party may request an order for sequestration of witnesses, or that the court can issue such an order on its own motion. This means that witnesses must remain outside of the courtroom during other witnesses’ testimony, and that they cannot discuss their upcoming testimony with other witnesses. Courts may hold witnesses in contempt if they violate a sequestration order. In a 1992 decision, Morton Bldgs. v. Rezultz, the New Jersey Supreme Court described “the purpose of sequestration” as being “to discourage collusion and expose contrived testimony.”

Rule 615 of the Federal Rules of Evidence goes into more detail about exceptions to sequestration. A defendant, for example, cannot be sequestered from their own case. Anyone found by the court to be “essential to presenting the party’s claim or defense” also cannot be sequestered. The federal rule is not binding in New Jersey state courts, but it is useful for a general understanding of how the rule works.
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March 6, 2017

New Jersey DWI Defendant Challenges Alcotest Results and Officer’s Observations as Evidence at Trial

by Evan M. Levow

The New Jersey statute defining the motor vehicle offense of driving while intoxicated (DWI) gives prosecutors several options for proving a defendant’s guilt. They can introduce evidence of blood alcohol content (BAC) above the “legal limit” established by law, and they can also introduce other evidence to show that a driver was impaired by alcohol or drugs. A recent decision from the New Jersey Superior Court, Appellate Division considered a defendant’s challenge to the sufficiency of the evidence introduced against him at trial. The decision in a recent case addressed both BAC evidence and observational evidence from police officers who were present at the time of the defendant’s arrest.

A BAC of at least 0.08 percent creates a legal presumption that a driver was impaired within the meaning of the DWI statute. Police use a device known as the Alcotest to collect breath samples in order to determine BAC. A 2008 decision by the New Jersey Supreme Court, State v. Chun, established specific procedures that police must follow prior to and during the collection of breath samples with an Alcotest. A failure to follow these procedures by police can result in the suppression of BAC evidence at trial, possibly followed by the dismissal of the DWI charges. At the same time, a failure to follow police instructions by a driver can result in a charge of refusal to submit to breath testing.

Even if a DWI suspect refuses to submit breath samples, the state can introduce testimony by the arresting officer, the officer who administered the Alcotest, and other witnesses to establish that a defendant was “under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug.” This might include observations of a defendant’s physical appearance and behavior, such as “glassy eyes” or “slurred speech.” An officer can testify about detecting the odor of alcohol, as well as a defendant’s performance, or lack thereof, on field sobriety tests.

March 2, 2017

New Jersey Court Rules on “Speedy Trial” Claim in Refusal Appeal

by Evan M. Levow

The Sixth Amendment to the U.S. Constitution guarantees multiple rights in criminal cases. New Jersey does not treat driving while intoxicated (DWI) as a criminal offense, but the courts of this state have extended some of the Sixth Amendment’s protections to DWI cases, including “the right to a speedy and public trial.” A defendant who believes they have been denied this right can challenge the indictment. The U.S. Supreme Court has identified several factors to consider in this sort of challenge, and New Jersey courts have held that the denial of the right to a speedy trial should result in the dismissal of the charges. The Appellate Division reviewed these factors last summer in State v. Kurek, in which a DWI defendant sought the dismissal of a case that lasted almost three years.

The U.S. Supreme Court’s 1972 ruling in Barker v. Wingo identified four factors that courts should consider regarding the right to a speedy trial: (1) the length of and (2) the reasons for the delay, (3) the circumstances of the defendant’s assertion of the right to a speedy trial, and (4) the prejudice, if any, to the defendant’s interests as a result of the delay. The court did not specify an amount of time that should be considered reasonable, preferring to allow courts to look at the circumstances of each case. The New Jersey Supreme Court has stated a general principle, in 2013’s State v. Cahill, that a court should consider the remaining Barker factors if the delay lasted more than a year.

Delays that are caused by the prosecution or by the court itself weigh in favor of the defendant, unless the court concludes that “the delays “were reasonably explained and justified.” A “neutral reason for delay such as . . . a heavy caseload” weighs in the defendant’s favor, although not as much as fault on the part of the government. If a court finds that the defendant is responsible for the delay, the defendant’s challenge is not likely to succeed.

February 13, 2017

Can a New Jersey DWI Defendant Claim “Insanity” in Court?

by Evan M. Levow

Defendants charged with criminal offenses in New Jersey can raise a variety of defenses. These are specific claims or arguments asserting that, even if the allegations against the defendant are correct, the defendant is not criminally liable. Many defenses are derived from the common law, and the New Jersey Code of Criminal Justice (CCJ) also defines various defenses. Since driving while intoxicated (DWI) is an offense under the Motor Vehicle Code, rather than the CCJ, courts have addressed whether common-law defenses are available in DWI cases on a case-by-case basis. The insanity defense involves the claim that a defendant was incapable of understanding the wrongful nature of their conduct at the time. A Law Division court considered the question of how this might apply to a DWI case at some length in State v. Inglis in 1997.

Insanity is a common-law affirmative defense in New Jersey. When a defendant raises a defense in a criminal case, the prosecution must rebut the defense as a part of their burden of proving guilt beyond a reasonable doubt. An affirmative defense, however, partially shifts the burden to the defendant, who must prove the elements of the defense by a preponderance of the evidence.

New Jersey uses the M’Naghten rule to identify what a defendant raising the insanity defense must prove in court. The rule derives from an 1843 English case in which the defendant killed the British Prime Minister’s secretary, falsely believing that the secretary was involved in a conspiracy against him. Under this rule, everyone is presumed to be sane, unless they can prove that, at the time of the offense, they suffered from a “defect of reason” or “disease of the mind,” which kept them from either “know[ing] the nature and quality of” their actions, or from “know[ing] what [they were] doing was wrong.” This is, by design, a difficult standard of proof.

January 14, 2017

New Jersey Law Requiring Police to Use Dashboard Cameras Remains Unfunded

by Evan M. Levow

In 2014, the New Jersey Legislature passed a bill, A2280, mandating dashboard video cameras for all new police vehicles used in traffic enforcement. The Governor signed the bill into law in September of that year, but as of mid-2016, the widespread use of dashboard cameras is unlikely to become a reality anytime soon. Dashboard camera evidence can be crucial for defendants charged with driving while intoxicated (DWI) and other traffic offenses. The fate of the new law, however, comes down to money. A2280 provided funding for the mandate by increasing the $100 surcharge imposed in DWI cases by $25. After a New Jersey township complained that the additional surcharge was insufficient to cover the cost of the cameras, a governmental body known as the Council on Local Mandates (CLM) ruled that A2280 is an “unfunded mandate,” and therefore it is in violation of the New Jersey Constitution. The ruling also invalidated the increased surcharge imposed by A2280. The CLM left open the possibility of reviving the bill, most likely through new legislation.

Under New Jersey’s DWI statute, prosecutors can prove that a defendant was intoxicated or impaired in multiple ways. A blood alcohol content (BAC) of 0.08 percent or higher creates a presumption of intoxication, but even without this kind of evidence, a police officer can testify about their observations of the defendant. They frequently testify about a defendant’s appearance, stating that they looked “glassy-eyed” or “flushed,” their behavior, and their performance on field sobriety tests. This type of evidence essentially asks municipal court judges to decide who is more credible between a police officer and a DWI suspect. Video evidence of a traffic stop, while not always helpful to the defense, can directly contradict an officer’s testimony about a defendant or even challenge the justification for the traffic stop itself.

The original sponsor of A2280 was motivated by his own experience with a traffic stop that led to charges of DWI and refusal to submit to breath testing. Video footage from a dashboard camera in the officer’s patrol car differed significantly from the officer’s description of what occurred during the stop. The charges were dismissed, and the officer eventually faced criminal charges, including perjury. A2280 requires municipal police departments to equip all newly acquired vehicles that are “primarily used for traffic stops” with dashboard cameras. It adds an additional $25 to the DWI surcharge to fund the acquisition of the cameras.

December 12, 2016

Allegations of Record Tampering Could Affect 20,000 New Jersey DWI Convictions

by Evan M. Levow

In criminal prosecutions, the state has the burden of proving a defendant’s guilt beyond a reasonable doubt. This is an intentionally difficult burden, designed to protect the rights described in the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution. Although driving while intoxicated (DWI) is a motor vehicle offense in New Jersey, rather than a criminal one, most of these protections apply in DWI cases. Defendants can challenge the admissibility or sufficiency of the state’s evidence before or during trial. They can also challenge evidence on appeal or in a motion for post-conviction relief (PCR), especially if new information becomes available. Recent allegations of records tampering against an officer of the New Jersey State Police may create ample opportunities for such challenges, since the allegedly fraudulent records potentially affect 20,000 DWI cases statewide.

The New Jersey Rules of Evidence govern the use of evidence in court proceedings. One of the most important rules involves statements made outside the presence of a judge or jury, which are known as “hearsay.” A statement is considered inadmissible hearsay when it is “offered in evidence to prove the truth of the matter asserted.” In plain English, a police officer can testify about their own personal observations of the defendant but not about statements made by other people. Public records kept in the ordinary course of government business, such as reports generated by an Alcotest device, are generally excepted from the hearsay rule. This exception, however, is subject to some exceptions of its own.

A 2007 decision by the New Jersey Appellate Division, State v. Kent, addressed the use of documentary evidence in a DWI case. The court held that a chemist report describing the results of a blood test is inadmissible at trial if the defendant does not have the opportunity to cross-examine the individual who prepared the report. The case drew on the Supreme Court’s 2004 ruling in Crawford v. Washington, which addressed the admissibility of written statements or reports that are deemed “testimonial” and therefore subject to the hearsay exclusion.