Defending the Case

January 14, 2017

New Jersey Law Requiring Police to Use Dashboard Cameras Remains Unfunded

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.

November 14, 2016

New Jersey Appellate Court Considers Warrantless Blood Draw and Credibility Questions in DWI Case

by Evan M. Levow

A defendant in a New Jersey driving while intoxicated (DWI) case can appeal a negative outcome, but appellate courts are limited in their authority to review some lower court actions. A recent decision by the New Jersey Superior Court, Appellate Division illustrates two important issues in a DWI defense. The defendant in State v. Hernandez challenged the evidence that she was intoxicated, arguing that police had her blood drawn without a warrant in violation of her Fourth Amendment rights. She also, at one point in the appeal, challenged the trial court’s findings regarding the credibility of her testimony as compared to several police officers’ testimony. Limitations on the appellate court’s ability to review factual findings, as well as the timeliness of the defendant’s objections, largely determined the court’s ruling.

The “exigent circumstances” exception to the Fourth Amendment’s warrant requirement allows police to conduct a warrantless search if they reasonably believe that there is a substantial risk of the loss or destruction of evidence. Police have used this exception to justify drawing blood from a DWI suspect without a warrant. In 2013, however, the U.S. Supreme Court ruled in Missouri v. McNeely that the human body’s natural process of metabolizing alcohol is not an “exigent circumstance” justifying a warrantless blood draw. Police can still establish legitimate justifications for warrantless blood draws, but McNeely set a much higher standard than before.

November 8, 2016

BAC of 0.08 Percent or Higher Not Always Necessary to Prove DWI, New Jersey Court Rules

by Evan M. Levow

New Jersey’s driving while intoxicated (DWI) laws allow prosecutors to prove impairment by alcohol in several ways. Evidence of blood alcohol content (BAC), determined by a breath, blood, or urine test, is a well-known method. Prosecutors may also offer witness testimony, particularly testimony by an arresting officer and others who observed the defendant at the time of the arrest. The New Jersey Supreme Court has held that no particular expertise is required to form an opinion, which would be admissible in court, that a person is intoxicated based on observation of the person. The New Jersey Appellate Division recently ruled in State v. Colabella that a BAC below the legal limit for DWI did not supersede officer testimony regarding a defendant’s intoxication in a DWI case. Even though the person’s BAC was not high enough to create a presumption of impairment, the court accepted other evidence.

A BAC of 0.08 percent creates a presumption of intoxication under New Jersey law. This BAC amount is commonly known as the “legal limit” for DWI, and a DWI offense based on BAC evidence is often known as “per se DWI.” New Jersey law makes it a separate offense to refuse to submit to breath testing. This indicates how important the state considers BAC evidence, but it is not absolutely required for a DWI conviction. The DWI statute defines the offense as driving “while under the influence of intoxicating liquor” or other substances, or with a BAC of 0.08 or higher. Prosecutors can introduce evidence that someone was “under the influence” through officer testimony about how the defendant was driving, their demeanor and appearance, the odor of alcohol, and their performance on field sobriety tests (FSTs).

The defendant in Colabella challenged a DWI conviction when BAC test results showed a BAC below the legal limit. According to the Appellate Division’s opinion, an officer pulled the defendant over for an illegal turn and an expired inspection sticker. The officer testified at trial that he detected a “strong odor of alcohol” coming from the vehicle. He also stated that the defendant had “slow and slurred” speech and “blood shot and watery” eyes, all indicators of alcohol impairment. The defendant reportedly admitted to consuming one beer and some ibuprofen.

November 4, 2016

Prosecutor Appeals New Jersey Court’s Approval of DWLS Defendant’s Request for Pretrial Intervention

by Evan M. Levow

Defendants in New Jersey criminal cases may be eligible to participate in a Pretrial Intervention program (PTI), which allows them an opportunity to avoid prosecution by focusing on rehabilitation. New Jersey law classifies driving while intoxicated (DWI) as a motor vehicle offense, rather than a criminal offense, although driving while one’s license is suspended (DWLS) due to DWI can lead to a criminal charge in certain circumstances. The New Jersey Appellate Division recently heard an appeal filed by a prosecutor’s office in a criminal DWLS case, State v. Rizzitello. The prosecutor alleged that the trial court wrongfully admitted the defendant into PTI over the prosecutor’s objection. Citing a 2015 New Jersey Supreme Court decision, State v. Roseman, which established guidelines for reviewing a prosecutor’s rejection of a PTI application, the Appellate Division reversed the lower court.

The general standards for PTI programs are established by the New Jersey Code of Criminal Procedure and Rule 3:28 of the New Jersey Rules of Court. Rule 3:28 includes a list of guidelines setting forth the purposes of the program, the factors prosecutors should consider in deciding whether to admit an applicant, and various administrative procedures. PTI programs, according to the guidelines, should be available when rehabilitation could “reasonably be expected to deter future criminal behavior.” Guideline 3(i) provides examples of offenses that are likely to render a defendant ineligible for PTI. Defendants must apply for PTI within 28 days of their indictment, and prosecutors must make a decision within 25 days of receiving an application.

The New Jersey Supreme Court held in Roseman that a trial or appellate court may overrule a prosecutor’s rejection of a defendant’s PTI application if it finds that the rejection was “a patent and gross abuse of discretion” by the prosecutor. The court also noted, based in part on Guideline 3(i), that a presumption against PTI exists for “crimes that are, by their very nature, serious or heinous.” A defendant must show “something extraordinary or unusual” about their background in order to overcome this presumption. The Roseman court cited an earlier decision, 2008’s State v. Watkins, which gave examples of “serious or heinous” crimes, including violent crimes, breaches of the public trust, and “non-drug addicted individuals who sell Schedule I and II narcotics for profit.”

September 29, 2016

Use of High Beams Does Not Justify Traffic Stop, According to New Jersey Supreme Court

by Evan M. Levow

The Fourth Amendment to the U.S. Constitution prohibits police from detaining a person temporarily, or stopping a vehicle on the road, without reasonable suspicion of some sort of unlawful activity. Courts are obligated to throw out charges originating from a traffic stop, such as driving while intoxicated (DWI), if the stop violated the driver’s constitutional rights. The New Jersey Supreme Court recently considered whether this state’s high-beam statute can justify a traffic stop under the Fourth Amendment. It ruled in State v. Scriven that the stop was unconstitutional because the officer did not witness an actual violation of the high-beam statute.

The “exclusionary rule” requires courts to suppress evidence obtained by police in violation of a defendant’s Fourth Amendment rights. An officer who initiated a traffic stop must justify the stop based on a suspected traffic offense, such as erratic driving or running a stop sign. Without reasonable suspicion, the state cannot use any evidence obtained as a result of that stop. This might include the officer’s testimony about the driver’s appearance or behavior, field sobriety tests, and Alcotest results.

Although the exclusionary rule is a powerful tool for protecting a defendant’s civil rights when police overstep their authority, courts have identified some exceptions. One of these, the “community care exception,” allows police to search private property without a warrant, as well as possibly detain a person or stop a vehicle, in the course of protecting the public from a hazardous situation. A hypothetical scenario might involve a police officer stopping a vehicle to warn about a hazardous road condition and then arresting the driver based on observations that lead the officer to suspect DWI.

September 23, 2016

New Jersey Appeals Court Orders Resentencing in DWI, Vehicular Homicide Case

by Evan M. Levow

New Jersey law imposes mandatory minimum sentences for certain offenses. A conviction for driving while intoxicated (DWI) in New Jersey can result in a mandatory minimum sentence if a defendant has multiple prior convictions. Mandatory minimum sentences may also apply to criminal offenses related to DWI. The New Jersey Superior Court, Appellate Division recently ruled that a trial court violated state law by pronouncing a sentence that was less than the mandatory minimum. In addition to DWI, the defendant in State v. Locane was convicted of the criminal offenses of second-degree vehicular homicide and third-degree assault by auto. The two criminal offenses carry mandatory minimum sentences.

New Jersey’s DWI statute states that a third or subsequent DWI offense shall result in a 180-day jail sentence, but it allows a judge to lower that sentence by one day for each day a defendant spends in a drug or alcohol treatment program, up to a total of 90 days. Although judges have the discretion to reduce a defendant’s jail time by up to half, a third or subsequent DWI offense effectively has a 90-day mandatory minimum sentence.

If a person operates a vehicle recklessly and causes the death of another person, they could be found guilty of “death by auto,” also known as vehicular homicide. Evidence that a defendant was operating a vehicle while intoxicated, in violation of the state’s DWI law, “give[s] rise to an inference that the defendant was driving recklessly.” Other factors that allow a judge or jury to infer recklessness include 24 consecutive hours without sleep and the use of a cell phone while driving. Vehicular homicide combined with DWI carries a mandatory minimum prison sentence of three years, with no eligibility for parole during that time. The law allows judges some discretion but requires them to explain their reasons for deviating from the minimum.

August 30, 2016

New Jersey Courts Can Convict a Defendant of DWI Even Without Direct Evidence that They Were Driving

by Evan M. Levow

New Jersey’s law on driving while intoxicated (DWI) prohibits “operat[ing] a motor vehicle while under the influence” of alcohol or drugs, or with a blood alcohol concentration (BAC) of 0.08 percent or greater. Courts have addressed multiple challenges to the definition of “operate” under this statute. New Jersey courts have held that the key issue is a defendant’s intent to drive, and the Legislature’s objective of preventing drunk driving requires a broad definition of “operate.” The New Jersey Appellate Division reviewed these issues in a recent decision, State v. Cancelosi, in which a defendant challenged the state’s proof that he “operated” his vehicle.The Appellate Division’s ruling in Cancelosi drew heavily on the Law Division’s ruling affirming the defendant’s conviction. The Law Division judge cited multiple cases addressing the definition of “operating” a vehicle under the DWI statute. Intent to drive is at the center of the “inquiry into operation,” according to several New Jersey Supreme Court rulings. In 1973, State v. Daly held that “evidence of intent to drive or move the vehicle” can prove the “operate” element of the statute. The court held in 1987’s State v. Tischio that “a drunk driver offends the law when he evinces an intent to drive his car.” It also held in that case that “a narrow or literal interpretation would frustrate the fundamental regulatory goals underlying New Jersey’s drunk-driving laws.”

A 1963 New Jersey Supreme Court decision, State v. Sweeney, held that the state does not necessarily have to prove any movement by the vehicle. In that case, police found the defendant in a vehicle on the side of a public road with the engine running. Since then, courts have found that circumstantial evidence is admissible to prove that a defendant “operated” a vehicle. The Appellate Division’s 2005 ruling in State v. Ebert stated that circumstantial evidence may include “observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated.”

August 22, 2016

Defendant in New Jersey DWI Case Challenges Admissibility of Alcotest Results, Claiming Spoliation of Evidence

by Evan M. Levow

The state has the burden of proving that a defendant is guilty of an alleged criminal or motor vehicle offense beyond a reasonable doubt. The New Jersey court system has rules governing the admissibility of evidence, and a defendant may object to certain evidence for a wide range of reasons. In cases of alleged driving while intoxicated (DWI), defendants often challenge the results from an Alcotest device, which measures a person’s blood alcohol concentration (BAC). The New Jersey Appellate Court recently ruled on a DWI defendant’s challenge to the admission of Alcotest evidence during his trial in State v. Patel. The defendant did not challenge the test itself or the results. Instead, he argued that the state had violated his due process rights by failing to preserve surveillance video footage from within the police station taken at the time of the test.

The use of an Alcotest device by police in DWI investigations is subject to multiple mandatory procedures, many of which were established by the New Jersey Supreme Court in a 2008 decision, State v. Chun. Prior to administering the test, an officer must observe the suspect for a continuous 20-minute period. During that time, the officer must make certain that the suspect does not eat or drink anything, place anything else in their mouth, touch their mouth, or regurgitate anything into their mouth. The defendant in Patel argued that surveillance footage would show that the officer failed to meet this observation requirement.

In evaluating the defendant’s challenge to the Alcotest results, the Appellate Division reviewed case law regarding the state’s duty to preserve evidence and its duty to provide evidence to a defendant. The U.S. Supreme Court ruled in 1963’s Brady v. Maryland that the Due Process Clause of the Fourteenth Amendment requires the state to provide exculpatory evidence in its possession to a criminal defendant. New Jersey has applied the same rule to traffic offenses, including DWI, in cases like 2012’s State v. Carrero. These decisions leave it to the state to determine whether evidence is exculpatory or not. In practice, defendants must often take affirmative steps to identify and request—or demand—such evidence from prosecutors.

August 16, 2016

New Jersey Appellate Court Considers DWI Defendant’s “Confusion” Defense

by Evan M. Levow

New Jersey’s implied consent law states that a person who operates a motor vehicle on the public streets and highways of this state is deemed to have consented to providing breath samples during investigations of suspected driving while intoxicated (DWI). Prior to collecting a breath sample in this situation, a police officer must read a “Standard Statement” explaining the law and the consequences of refusing to submit a sample. Penalties for refusal can include license suspension, monetary fines, and the use of an ignition interlock device. A defendant appealed his refusal conviction under the “confusion doctrine,” which the New Jersey Supreme Court described in a 1987 decision, State v. Leavitt. The Appellate Division rejected this argument in June 2016 in State v. Byrne, holding that the “confusion doctrine” only applies to refusal cases in very limited circumstances.

Law enforcement officers throughout the country are required to read a list of rights to a person during or shortly after their arrest. The U.S. Supreme Court established this obligation in its 1966 decision in Miranda v. Arizona. This list of rights, which begins with the familiar phrase “You have the right to remain silent,” is commonly known as “Miranda rights.” The process of reading those rights to someone is sometimes called “Mirandizing” them.

The Standard Statement used in DWI arrests in New Jersey is significantly different from the Miranda statement. While the Miranda statement discusses an individual’s Fifth Amendment right against self-incrimination—i.e., the “right to remain silent”—and the right to representation by an attorney, the Standard Statement says that these rights do not apply with regard to the taking of a breath sample.