Articles Posted in DWI Information

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According to recent media reports, the number of convictions for driving while intoxicated (DWI) in New Jersey is decreasing, at least with regard to cases involving alcohol. The decline reportedly might be due to an increase in DWI cases involving marijuana and other controlled substances. New Jersey law provides no per se standard for impairment by marijuana or other drugs that is comparable to the standard for alcohol. A bill currently pending in the New Jersey Assembly, A2776, would establish a per se standard for marijuana in DWI cases. This bill, if enacted, would probably present both benefits and drawbacks for New Jersey DWI defendants.

New Jersey law creates a presumption of impairment if a defendant’s blood alcohol content (BAC) is at least 0.08 percent. This is often known as DWI per se. Since no similar standard exists for marijuana and other drugs, prosecutors must rely on testimony from police officers who have received training as “drug recognition experts” (DREs). Typically, a DRE-certified officer observes a defendant during or shortly after their arrest, and then forms an opinion of which substance(s) they took. The use of DRE testimony in court presents problems for defendants, given the wide gulf that often exists between the questionable scientific basis of their training and the weight that courts often give to police officers’ testimony.

Tests for marijuana look for specific compounds in the blood. Delta 9-tetrahydrocannabinol (THC) is the active component of marijuana, but it can dissipate in the bloodstream within a few hours. As the body metabolizes THC, it produces a form of carboxylic acid known as delta 9-carboxy-THC (THC-COOH) as a metabolite. The presence of THC-COOH can determine if someone has recently used marijuana, but it is a less accurate method of establishing actual impairment.

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New Jersey law imposes a range of penalties for driving while intoxicated (DWI) and related offenses, including license suspensions, fines, and the possibility of jail time. On top of that, the state Motor Vehicle Commission (MVC) assesses surcharges in New Jersey DWI cases. These are monetary penalties that must be paid separately from any fines imposed by a municipal court. The amount of the surcharge can be substantial, particularly for someone with multiple convictions, so understanding and preparing for a surcharge obligation is an essential part of defending against DWI charges. New Jersey considers DWI to be a “petty” offense, contained in the state’s motor vehicle laws rather than its criminal statutes. Courts have held that surcharges do not enhance the penalties for DWI to the point that it should be considered a criminal offense.

The New Jersey DWI statute identifies an increasing range of penalties. A first offense involving a blood alcohol content (BAC) of at least 0.08 percent, but less than 0.10 percent, carries the lowest maximum penalty. A third or subsequent offense carries the greatest potential penalty, including up to six months in jail, a fine of up to $1,000, and a license suspension of 10 years. The possible penalties for refusal to submit to breath testing also increase based on prior convictions, and they include both fines and a license suspension. A conviction for either offense includes a $100 surcharge payable to a Drunk Driving Enforcement Fund managed by the state, but this is not the only surcharge payable in DWI and refusal cases.

The New Jersey Automobile Insurance Reform Act of 1982 created a surcharge system under the MVC. It applies to DWI and refusal offenses occurring in New Jersey on or after February 10, 1983, and to comparable out-of-state offenses occurring on or after January 26, 1984. The amount of the surcharge has not changed since that time. The surcharge for a first or second DWI or refusal conviction is $3,000, payable in three annual installments of $1,000. For a third or subsequent conviction, the surcharge is $4,500, payable in three annual $1,500 payments. If a driver is convicted of both DWI and refusal based on a single arrest, they must only pay one surcharge. Private insurance companies may also assess their own surcharges after DWI or refusal convictions.

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New Jersey’s driving while intoxicated (DWI) statute is not limited to impairment due to alcohol. The text of the statute also includes “narcotic, hallucinogenic or habit-producing drug[s]” as substances that could cause impairment. The statute specifies a measurable amount of alcohol in one’s system that creates a presumption of impairment, but it does not do the same for any other drugs. This requires prosecutors to rely largely on eyewitness evidence from arresting officers, who may or may not have training in recognizing the signs of impairment by specific substances. If the alleged substance is illegal under state or federal drug laws, this might assist prosecutors. As more and more states pass laws allowing the use of marijuana for medical or recreational purposes, though, the issue is becoming more complicated. New Jersey may consider legislation to allow recreational marijuana use later in 2018, so law enforcement will have to address this issue soon.The New Jersey DWI statute establishes two methods of proving impairment. One method, sometimes known as “per se DWI,” presumes impairment if a defendant’s blood alcohol content (BAC) was at least 0.08 percent soon after they were allegedly operating a motor vehicle. The “implied consent” statute authorizes police to collect breath samples from anyone driving on New Jersey roads upon suspicion of DWI, and it makes refusal a separate traffic offense. Blood and urine samples may also indicate BAC, but these usually require a warrant or consent. The lack of any statutory guidelines for any drug other than alcohol means that prosecutors must pursue the other form of DWI, which requires proof of driving “while under the influence” of any of the list of substances mentioned earlier. Unlike BAC levels, this is a much more subjective question.

Some states have laws or regulations that specify an amount of marijuana, or other drugs, in one’s system that creates a presumption of impairment. For marijuana, the measurement is in nanograms of THC, the active component of marijuana, per milliliter of blood. Colorado, which was the first state to allow recreational use of marijuana, has set a limit of five nanograms per milliliter. In Pennsylvania, the “legal limit” for marijuana is one nanogram per milliliter. A debate is ongoing among scientists as to whether these numbers have any useful meaning with regard to impairment.

Other states, including New Jersey, rely on testimonial evidence to determine whether a drug impaired a defendant’s ability to drive. The New Jersey Supreme Court affirmed a conviction for DWI based on impairment by marijuana in State v. Bealor in 2006. The court held that, while lay opinions as to intoxication by alcohol may be admissible, they are not necessarily admissible for other drugs because the signs of impairment by drugs are not as well-known to the public as the signs of drunkenness. In this case, the arresting officers testified that the defendant’s “eyes were bloodshot and glassy,” that he moved slowly and had slurred speech, and that the smell of “burnt marijuana” emanated from the car. Tests of the defendant’s urine showed the presence of marijuana. These two pieces of evidence, the court held, were enough to support the conviction, even without expert witness testimony.

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New Jersey’s driving while intoxicated (DWI) statute does not limit the offense to alcohol. It also includes any “narcotic, hallucinogenic or habit-producing drug” that might impair one’s ability to drive. The statute makes proving impairment by alcohol rather easier for the state by identifying a specific level of blood alcohol content (BAC)—0.08 percent or above—that creates a legal presumption of intoxication. In cases in which police suspect impairment by something other than alcohol, or in which the BAC is below the legal limit, but they still suspect intoxication of some sort, they may bring in a “drug recognition expert” (DRE) to evaluate the suspect. DREs receive training in identifying signs of impairment by various drugs, but both their methodology and the scientific validity of their evaluations remain questionable. In fact, it is junk science that is less than 50% reliable — less reliable than a flip of a coin.

Prosecutors must prove that a defendant in a DWI case was legally impaired. Proving that the defendant’s BAC was at least 0.08 percent, based on a breath, blood, or urine test, typically satisfies this requirement. This evidence is not always available, or prosecutors may allege that a defendant with BAC of less than 0.08 percent was nevertheless legally impaired. The testimony of the arresting officer might support this claim, such as if the officer witnessed slurred speech or other signs indicating intoxication. The mere fact that a driver was not operating their vehicle safely, however, is not enough for a DWI charge, since reckless driving is a distinct offense. DREs serve to provide additional support for the allegation that a driver was impaired. It is critical that the opinion of the DRE be challenged, as any opinion based on the DRE protocol is not based on scientifically validated testing.

The Los Angeles Police Department established the first DRE program in the 1970s, after numerous DWI suspects had a low BAC but still seemed impaired to police. The National Highway Traffic Safety Administration (NHTSA) later expanded the program to other states. The International Association of Chiefs of Police (IACP) has operated a nationwide program since 1989. Police officers receive training and certification through the IACP in the recognition of seven categories of drugs. New Jersey has over 400 certified DREs.

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The Fourth Amendment’s prohibition on unreasonable searches and seizures applies in all New Jersey driving while intoxicated (DWI) investigations and prosecutions. Defendants can raise Fourth Amendment challenges to numerous aspects of a DWI prosecution, such as a lack of reasonable suspicion before stopping their vehicle, or a lack of probable cause to initiate a DWI investigation. In cases in which police suspect an intoxicating substance other than alcohol, they may make use of a Drug Recognition Evaluator (DRE), who has received training in identifying signs of impairment by various drugs. A lawsuit filed last year challenges the use of DREs on Fourth Amendment grounds. While the case is pending in another state, it could affect future New Jersey DWI cases.

A private organization, the International Association of Chiefs of Police (IACP), operates the system for training and certifying DREs in cooperation with the National Highway Traffic Safety Administration (NHTSA). New Jersey has more than 400 police officers participating in the program. DREs use a 12-step process to assess whether a DWI suspect is under the influence of drugs. The IACP claims that this process is supported by scientific research, although this is subject to dispute. Part of the process, for example, involves field sobriety tests that are not part of the standard battery of tests approved by the NHTSA. A variety of medical conditions, physical impairments, and other factors could influence an individual’s performance on the various tests administered by a DRE as part of the 12-step process. A DRE’s expertise, for evidentiary purposes in court, usually does not extend beyond their specific training as a DRE.

The lawsuit mentioned above, Ebner v. Cobb County, involves three plaintiffs who, according to their complaint, were arrested, subjected to forced blood draws, and held for several hours “simply because a police officer had a hunch, based on deeply flawed drug-recognition training, that they might have been smoking marijuana.” None of them were under the influence of marijuana at the time of their arrests, they claim, and toxicology tests reportedly showed no traces of marijuana or its metabolites. They were all charged with DWI, but all charges were eventually dropped.

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Under the laws of the state of New Jersey, driving while intoxicated (DWI) is a motor vehicle offense rather than a criminal offense. While a DWI conviction can result in serious penalties, including the possibility of jail time, the New Jersey court system does not deal with DWI cases in the same way it handles most criminal cases. A defendant in a New Jersey DWI case, for example, does not have the right to a trial by jury as described in the Sixth Amendment to the U.S. Constitution. DWI is considered a “petty” offense, and therefore it is not covered by all of the provisions of the Bill of Rights that apply in criminal cases. Most other rights, like the Fourth Amendment’s protection against unreasonable searches and seizures and the Sixth Amendment’s right to confront one’s accuser, still apply in DWI cases. Understanding which courts may consider DWI prosecutions and appeals, and how they are allowed to consider them, is important when planning a defense against DWI charges.

Municipal courts have original jurisdiction over DWI cases under Rule 7:1 of the New Jersey Rules of Court (NJROC). The municipal court judge handles all pretrial motions and other matters, and presides over the trial if one occurs. The judge will render a verdict and decide on a sentence. Several levels of appeal are available after a conviction in municipal court. If a person seeks post-conviction relief, however, NJROC 7:10-2 requires them to file a petition in the municipal court where the conviction took place.

Appeals from a municipal court conviction go to the Superior Court, Law Division. NJROC 3:23 requires a defendant to file a notice of appeal within 20 days of their conviction. The Law Division, upon receiving a transcript from the municipal court, may reverse the conviction and remand the case to the lower court, or it may conduct a trial de novo. While the Law Division is not bound by the municipal court’s findings of law or fact, it must “give due…regard to the opportunity of the [municipal court] to judge the credibility of the witnesses,” according to the New Jersey Supreme Court 1964 ruling in State v. Johnson.

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New Jersey laws dealing with driving while intoxicated (DWI) are consistent throughout the state, meaning that prosecutors in each county in New Jersey must meet the same burden of proof to obtain a conviction. A review of municipalities around the state by NJ.com, however, has found that some local police departments are much more assertive in enforcing these laws. New Jersey law allows municipalities to regulate the sale of alcoholic beverages, including by prohibiting their sale within city limits. These “dry towns,” according to the NJ.com report, have some of the highest DWI arrest rates in the state. Differences in arrest rates can have many possible causes, including prioritization by local law enforcement.

A person commits the offense of DWI if they operate a motor vehicle while impaired by alcohol or drugs, or while they have a blood alcohol concentration (BAC) of 0.08 percent or higher. Police and prosecutors often prefer to prove impairment with BAC evidence, since a BAC above the “legal limit” of 0.08 percent creates a presumption of intoxication. They can also meet their burden of proof with evidence of how a driver behaved, appeared, or smelled at the time police pulled them over. During patrols, police may look for vehicles that are moving erratically, which could indicate impairment by a driver. Police are also allowed to operate roadside checkpoints for the purpose of checking motorists for common signs of intoxication. Each police department has wide leeway in setting enforcement priorities.

Businesses that serve or sell alcohol must have a license to do so. New Jersey law gives municipalities the authority to determine how many licenses, if any, to issue. A municipality might ban the sale of alcohol altogether, or it might prohibit retail sales while allowing restaurants to serve alcohol. New Jersey has 32 dry towns that prohibit alcohol sales to some extent. Most of these are located in the southern part of the state. Camden County is home to four dry towns:  Audubon Park, Collingswood, Haddon Heights, and Haddonfield.

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On multiple occasions, prosecutors in this state have charged people with driving while intoxicated (DWI) for operating a bicycle while allegedly under the influence. This raises an interesting question about the scope of DWI law. Courts have reached different conclusions about whether operating a non-motorized bicycle—meaning one that is solely powered by a person’s own effort—constitutes DWI under New Jersey law. The Appellate Division does not appear to have ruled on the question directly, but trial court decisions point to the conclusion that the DWI statute only applies to motorized vehicles.

The New Jersey statute defining DWI specifically states that an offense occurs when a person is operating a “motor vehicle.” State law defines a “motor vehicle” to include most vehicles “propelled otherwise than by muscular power.” This definition excludes trains and other rail-based vehicles, as well as “motorized bicycles.” The law defines a “motorized bicycle” as a pedal bicycle that can be assisted by a motor that allows it to travel at a maximum of 25 miles per hour—commonly known as a moped. A separate statute addresses operating a motorized bicycle while under the influence of alcohol or drugs, and it imposes the same penalties as in a DWI case involving a motor vehicle.

Several New Jersey trial courts have addressed the question of whether the DWI statute applies to bicycles. Since none of these cases resulted in an Appellate Division ruling, they are not binding on other courts. They may still be persuasive, though. In 1982, the Superior Court in Somerset County held in State v. Tehan that the DWI statute applies to bicycles, but only to a partial extent. Bicycle riders are “subject to all of the duties applicable to the driver of a vehicle,” the court noted. It also found that, since riding a bicycle does not require a license, the driver’s license suspension provisions of the DWI statute do not apply to bicycles. It affirmed the municipal court’s guilty verdict and the fine, but it reversed the license suspension.

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Every defendant charged with driving while intoxicated (DWI) in New Jersey is entitled to a trial by a municipal court judge. If a defendant believes that the municipal court has made an error in its verdict, they can appeal to the New Jersey Superior Court, Law Division. This court has the authority to conduct a new trial. From there, a defendant can appeal to the Appellate Division, and then to the New Jersey Supreme Court. These higher courts, however, are limited in their ability to review or reverse the factual findings of the lower courts, and they are often hesitant to second-guess a trial court’s conclusions. The Appellate Division reviewed these limitations in a March 2017 decision.

Municipal courts in New Jersey have jurisdiction over motor vehicle offenses, including DWI. A DWI case is assigned to the municipal court of the city, borough, town, or other municipality where the offense allegedly occurred. At trial, the municipal judge hears the arguments from the prosecution and the defendant, reviews the evidence, and renders a verdict. This is generally the only time the parties may present live witnesses, giving the municipal judge a unique perspective on the case.

According to Rule 3:23 of the New Jersey Rules of Court, a defendant has the right to appeal a DWI conviction in municipal court to the Law Division. This court may conduct a trial de novo, meaning that it is not bound by the municipal court’s factual or legal findings, and it may consider the case completely anew. That said, the Law Division typically only has access to the record of the proceedings in the municipal court. This includes all of the evidence presented at trial, but it does not include whatever understanding of the case may come from watching the testimony of witnesses in person. For this reason, courts are often unwilling to upset a municipal judge’s factual findings without evidence of a significant error.

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The statute defining driving while intoxicated (DWI) in New Jersey establishes two ways for prosecutors to prove guilt. First, they can prove beyond a reasonable doubt that a defendant “operate[d] a motor vehicle while under the influence of” alcohol or drugs. Alternatively, they can show that a defendant operated a motor vehicle while their blood alcohol content (BAC) was 0.08 percent or higher. Despite the common name of the offense, however, the statute says nothing about “intoxication.” It also omits another word commonly used in discussions of DWI, “impairment.” All the way back in 1964, the New Jersey Supreme Court ruled in State v. Johnson that a defendant’s actual impairment is not an essential element of DWI, and the ability to drive safely anyway is not a defense.

Operating a motor vehicle with a BAC of 0.08 percent or higher is sometimes known as DWI per se, since the BAC evidence effectively creates a legal presumption of guilt. A defendant can challenge BAC evidence by questioning the accuracy of the testing device. State law requires police to follow specific procedures when administering a breath test, and the device requires regular maintenance and careful calibration. A failure by police to follow proper procedures can result in the exclusion of test results at trial.

A DWI conviction is possible without BAC evidence, or even with evidence that a defendant’s BAC was less than 0.08 percent, if the state provides evidence that the defendant exhibited signs of intoxication. This usually involves eyewitness testimony from police officers and others. Challenging this sort of evidence might require impeaching a witness’ credibility or providing a counter-narrative to the prosecution’s story. A defendant can also challenge the prosecution’s entire case if they can show that the original traffic stop or arrest violated their Fourth Amendment rights.

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