DWI Information

December 1, 2015

New Jersey DWI Arrests, Part 1: Traffic Stops

The most common conception of a DWI arrest in the popular imagination is, perhaps, one that takes place after an officer pulls over a car based on suspicion that the driver is intoxicated or otherwise impaired. This accounts for many DWI arrests, but it is by no means the only way a person could find themselves facing DWI charges. In this series of posts, we will review the various ways police may make an arrest for suspected DWI.

Traffic Stops on Suspicion of DWI

Police officers are legally authorized to stop a vehicle and question its driver if they have a reasonable suspicion that the person is in the process of committing a crime, has recently committed a crime, or is preparing to commit a crime in the near future. This is commonly known as a “Terry stop,” after the U.S. Supreme Court’s 1968 decision in Terry v. Ohio.

An officer can claim reasonable suspicion of DWI based on alleged indicators like the inability to stay in a lane of traffic, weaving between lanes of traffic, colliding with other vehicles or roadside objects, and generally erratic driving. It can even include overly cautious driving in some situations, although that could also merely be an indicator that the driver is transporting something fragile.

November 24, 2015

New Jersey Township Offers Free Rides in Effort to Reduce DWI

by Evan M. Levow

Police departments and state and local governments around the country frequently roll out new plans for reducing the incidence of driving while intoxicated (DWI) in their jurisdictions. Usually, these plans involve extra police patrols, DWI checkpoints, or increased penalties for certain acts associated with DWI. Whether measures like this are effective is a matter of intense debate. Evesham Township, New Jersey is taking a different approach. It began a program in September 2015 that offers rides home to people who, after a night out, are not able to drive themselves. Programs like this could be beneficial in New Jersey, where state DWI law prohibits not only operating a vehicle while intoxicated but also, in some cases, permitting an intoxicated person to drive.

Evesham Township’s program began in September as a 30-day pilot program using shuttles and a local designated driver service. In October, the township announced that it was extending the program through the holidays and that it was doing so through a partnership with the ride-sharing company Uber and a designated driver service called BeMyDD. This is reportedly the first program of its kind in the country.

Uber, which is based in San Francisco, connects users with drivers through a mobile app. Its service is reportedly available in at least 300 cities around the world, including many parts of New Jersey. BeMyDD began in Cleveland several years ago and has spread to other U.S. cities. It allows people to essentially hire a driver at an hourly rate to take them to bars, restaurants, and other locations.

November 14, 2015

Grounds for Post-Conviction Relief in New Jersey DWI Cases

by Evan M. Levow

Post-conviction relief (PCR) is a critically important procedure in many types of cases in New Jersey, including—and perhaps especially including—convictions for driving while intoxicated (DWI). Courts can use prior DWI convictions as grounds for enhancing penalties for a current DWI conviction. This is where PCR often plays an essential role.

Grounds for Relief

Numerous possible grounds exist for PCR, including:

– The defendant’s guilty plea did not meet the requirements of the New Jersey Rules of Court. Rule 7:6-2(a) states that a municipal court, before accepting a guilty plea, must determine that the defendant is voluntarily making the plea, and that the defendant understands the charges and the consequences of pleading guilty. The defendant must also state a “factual basis” for their guilty plea.
– The defendant was unrepresented by counsel, and the court did not make a finding on the record, as required by Rule 7:6-2(a), that the defendant had “knowing[ly] and intelligent[ly]” waived the right to counsel.
– The defendant received ineffective assistance of counsel.
– The DWI trial, and/or the conviction and sentence, violated the defendant’s rights under the U.S. Constitution, the New Jersey Constitution, or New Jersey law.
– The sentence imposed by the court was illegal. This last ground for PCR merits additional examination.

October 5, 2015

Medical Marijuana Patient Acquitted of DWI

by Evan M. Levow

The offense of driving while intoxicated (DWI) includes more than just alcohol. Almost any drug that causes an impairment can lead to a DWI charge. The law in New Jersey and other states specifically sets a “legal limit” for blood alcohol content (BAC), but it does not always specify an amount for other substances. Different substances also require different tests, and not all tests are reliable. A driver charged with DWI in Colorado due to a positive marijuana test recently obtained an acquittal after she argued that the marijuana test cannot prove that she was impaired at the time she was driving. Colorado law is significantly different from New Jersey law on this issue, but this state’s law is gradually changing.

Colorado is one of a handful of states to have effectively legalized marijuana for both medical and recreational use. In New Jersey, marijuana remains a Schedule I controlled substance, except for some narrow exceptions allowed by the New Jersey Compassionate Use Medical Marijuana Act (CUMMA). The defendant in the Colorado case reportedly moved to that state specifically so that she could use marijuana for her chronic back pain. An officer pulled her over in June 2014, not for erratic driving but for an expired license plate tag. After noticing the smell of marijuana, the officer required her to perform field sobriety tests, which she allegedly failed. A blood test showed a marijuana level of 19 nanograms, well above the state’s limit of five nanograms.

Prosecutors charged the defendant with DWI. They offered her a plea deal, which she reportedly rejected because it would require her to give up her medical marijuana card for up to two years. The case went to a jury trial, which is allowed in Colorado, unlike New Jersey. She argued that her test results were not conclusive evidence that she was impaired at the time she was driving her vehicle, since THC, the active component of marijuana, lingers in the bloodstream far longer than alcohol or other substances. While a blood test to determine BAC might indicate that a person recently consumed alcohol, she argued, a blood test for marijuana cannot tell whether or not a person is actually impaired. The jury agreed and nullified the charges.

July 22, 2015

How Federal Law Could Affect a New Jersey DWI Case

by Evan M. Levow

The United States has a federal system of government, in which state governments have the authority to pass laws with regard to some issues, and the federal government in Washington handles other issues. Criminal law is one of many areas where state and federal governments might overlap, but driving while intoxicated (DWI) is almost always handled at the state level. A DWI may be subject to prosecution under federal law in some situations, and various federal agencies have established penalties for certain people with DWI convictions. Congress has also found ways to influence state laws relating to DWI.

Overview of New Jersey DWI Law

In New Jersey, the state must prove that a driver was either impaired as a result of alcohol or a controlled substance, or had a blood alcohol concentration (BAC) of 0.08 percent or more. Penalties for DWI increase based on the number of prior convictions or the driver’s BAC. A driver who is under 21, the state’s legal drinking age, could be charged with underage DWI if they have a BAC of 0.01 percent or more. New Jersey also makes it an offense to refuse to submit a breath sample for BAC testing when a police officer has probable cause to suspect DWI, which can result in license suspension.

June 19, 2015

Recent Decisions in Several New Jersey DWI Appeals Demonstrate that Actual Driving Is Not Always Required to Sustain a DWI Conviction

by Evan M. Levow

In order to prove that a defendant has committed the offense of driving while intoxicated (DWI) in New Jersey, prosecutors do not necessarily have to provide direct proof that the defendant was driving, such as through testimony from an arresting officer that they saw the defendant driving erratically, or that they pulled the defendant over on suspicion of another traffic offense and noticed signs of intoxication. Under New Jersey law, the key element of a DWI offense is that a defendant has control of a vehicle while under the influence of alcohol or drugs. Several recent decisions by the New Jersey Superior Court, Appellate Division deal with situations where an arresting officer did not witness actual driving, but where the court still found the defendant guilty of DWI.

New Jersey’s DWI statute defines the offense, in part, 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…” While the plain meaning of these words suggests that the state must prove actual operation of a vehicle, New Jersey courts have held that it is enough to prove that a defendant was imminently capable of operating a vehicle, or that evidence suggests that they had been operating the vehicle before the arresting officer’s arrival on the scene.

Evidence supporting a DWI conviction could include testimony indicating that the vehicle could not have gotten into the position where the officer found it without the defendant driving it there, or something as simple as the officer finding the defendant in the driver’s seat of a stopped vehicle with the engine running. Municipal courts decide many cases based on the defendant’s own admission that they had been driving earlier.

April 27, 2015

Court Rules on Right Against Self-Incrimination, Right to Jury Trial in New Jersey DWI Case

by Evan M. Levow

A defendant in a New Jersey DWI case claimed that the municipal court denied him two important constitutional rights: the right against self-incrimination and the right to a trial by jury. The Fifth Amendment to the U.S. Constitution provides that no one may be compelled to give testimony against themselves in a criminal case. This has led to the well-known “right to remain silent” during and after an arrest, as well as strict rules prohibiting prosecutors from using a defendant’s silence as evidence of guilt. The Sixth Amendment guarantees the right to a jury trial in many, but not all, criminal cases. The New Jersey Superior Court, Appellate Division’s opinion in this case, State v. Engle, explains how these rights apply in many DWI cases.

A police officer pulled the defendant over for allegedly making an illegal left turn. The officer claimed that he “detected an odor of alcohol” coming from the defendant’s vehicle and observed that the defendant’s eyes were “bloodshot and glassy.” He asked the defendant to perform several field sobriety tests (FSTs), and he testified that the defendant did poorly on all of them.

A medical doctor testified for the defendant, stating that his “excessive weight and reconstructed left knee” prevented the defendant from performing well on the FSTs. He also testified that the defendant’s bloodshot and glassy eyes were consistent with a cold the defendant stated he had at the time. Prosecutors countered by noting that the defendant did not complain about pain during the tests, nor did he inform the officer of any medical conditions that could affect the FSTs. The municipal court convicted the defendant of DWI, improper turn, and several other offenses.

April 9, 2015

Out-of-State DWI Convictions Count as Prior Convictions in New Jersey DWI Cases, Appellate Court Holds

by Evan M. Levow

A defendant appealed his conviction of driving while license suspended (DWLS) to the New Jersey Superior Court, Appellate Division, claiming that the trial court should not have counted DWI convictions from New York as prior convictions under New Jersey law. State criminal law treats DWLS as a criminal offense, not a traffic offense, when the suspension is due to prior DWI convictions. The appellate court affirmed the trial court in State v. Galdieri, finding that state law includes out-of-state convictions, even if a prior case included mistakes of law.

DWLS is normally a traffic offense under New Jersey law. It is a crime of the fourth degree, however, if the reason for the suspension is a second or subsequent conviction for DWI or refusal to submit to breath testing. According to the court, the defendant in Galdieri had two DWI convictions from the state of New York, although it does not say when these occurred. The defendant pleaded guilty to DWI in a New Jersey court in October 2012. The court suspended his license for three months, which is the penalty for a first DWI offense. This apparently happened because the judge was not aware of the New York cases. Twelve days later, the defendant was pulled over and charged with DWLS, which resulted in the present case.

The defendant pleaded guilty to criminal DWLS in June 2013, based on the prior DWI convictions. On appeal, the defendant apparently conceded that he had prior DWI convictions from the state of New York, but he claimed that they should not count towards enhancing the offense to the criminal level. He argued that the October 2012 DWI conviction in New Jersey should count as a first offense, since it was the only New Jersey conviction and the judge imposed the penalty for a first offense.

March 18, 2015

Defendant Not Obligated to Disclose Prior DWI Conviction, According to New Jersey Appellate Court

by Evan M. Levow

A New Jersey appellate court recently considered the question of whether a defendant must inform the court of prior convictions that, under New Jersey law, could result in an enhanced sentence. In an unpublished February 2015 decision, State v. Kane, the court ruled that a defendant charged with driving while license suspended (DWLS) was not obligated to inform prosecutors or the court that the suspension was due to a driving while intoxicated (DWI) conviction. State motor vehicle and criminal statutes include enhanced penalties in certain DWLS cases where DWI was the reason for the suspension. The court rejected the state’s arguments that the defense’s failure to provide this information constituted fraud and a breach of attorney ethics rules.

The defendant was arrested in January 2012 in Ocean City for talking on a cell phone while driving. She was subject to a 10-year suspension of her driver’s license at the time, according to the court, because of multiple DWI convictions. She pleaded guilty to DWLS in municipal court that March. DWLS is normally a “non-indictable offense,” and the judge sentenced her to 30 days in jail, to be served intermittently.

New Jersey law prescribes enhanced penalties for a DWLS if the underlying reason for the license suspension is a DWI offense. About seven months before the defendant’s plea, in August 2011, a new criminal statute became effective that made the defendant’s DWLS offense an indictable offense, with substantially greater penalties. The statute allows prosecution of DWLS as a fourth-degree crime, as opposed to a traffic offense, if the license suspension was due to DWI, and the defendant has one or more prior DWLS convictions.
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March 6, 2015

Motorist Settles Lawsuit Against City Involving Arrest for Alleged DWI

by Evan M. Levow

An individual who has made a name for himself publicizing the locations of police checkpoints in Southern California recently settled a wrongful arrest lawsuit against a California city. A police officer arrested him for alleged DWI, he claimed in his lawsuit, after he refused to submit to a field sobriety test. He maintained that he was not impaired, and that the officer had no probable cause to suspect that he was. While we as DWI attorneys would not necessarily encourage anyone to make a spectacle out of their assertion of their constitutional rights, this lawsuit demonstrates how police can infringe on the the rights of drivers during traffic stops, which can lead to dismissal of charges.

The plaintiff, using the name “Mr. Checkpoint,” operates a website that publishes the locations of police checkpoints, where officers stop vehicles at random to check for DWI. He makes this information available to people on the website, via the social media service Twitter, and through text message subscriptions. The practice is reportedly not popular with some law enforcement agencies, but L.A. Weekly noted in 2013 that making this information easily accessible encourages people who might otherwise drink and drive “to think about either staying home to party, finding a designated driver or calling a cab.”

The traffic stop that led to the lawsuit occurred in late 2011. He was pulled over in Santa Monica for allegedly making an illegal right turn. He recorded audio of this incident on his phone. The officer arrested him for DWI when he refused to perform a field sobriety test. He spent the night in jail, his car was impounded, and his dogs, who were in the backseat, were taken to the pound. He was able to retrieve the car and his dogs, and the prosecutors declined to file charges when blood test results showed no alcohol.