Motor Vehicle Stop

December 21, 2016

New Jersey Law Enforcement Agencies Plan DWI Checkpoints for the Holidays

The holidays are a time of happiness and celebration for many people, but law enforcement officials are aware of the risks to public safety potentially posed by too much celebration. Police departments throughout New Jersey have announced increased enforcement of state laws regarding driving while intoxicated (DWI) during the holiday season. They have many means of doing this at their disposal, from traffic stops based on a reasonable suspicion that a person might be impaired by alcohol, to roadside checkpoints intended to check drivers for DWI. While the Fourth Amendment to the U.S. Constitution limits the ability of police to stop and search people, and those limits have just as much force during the holidays as at any other time of the year, courts have allowed police to operate DWI checkpoints subject to certain requirements. We encourage everyone to enjoy the holidays and be safe, and to know their rights under state and federal laws.

New Jersey’s DWI statute makes it a motor vehicle offense to operate a vehicle “while under the influence of intoxicating liquor,” or with a blood alcohol concentration (BAC) of at least 0.08 percent. This means that police can arrest someone on suspicion of DWI, and prosecutors can pursue charges, even without evidence of a BAC above the legal limit. To do so, they must present other types of evidence, such as testimony from an officer who observed a defendant at or near the time of their arrest and can describe behavior, appearance, or other conditions indicative of intoxication.

The holiday season often features parties in bars and other public venues and in people’s homes. Police across the state are participating in the two-week “Drive Sober or Get Pulled Over 2016 Year End Holiday Crackdown,” a program supported by the U.S. National Highway Traffic Safety Administration (NHTSA) and the New Jersey Division of Highway Traffic Safety (DHTS). Local law enforcement agencies may obtain grants from the DHTS to assist in implementing the campaign, which includes “saturation patrols” by police and increased use of roadside DWI checkpoints.

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 4, 2016

Police Cannot Search Vehicle Solely Because It Came from a State Where Marijuana Use is Legal

by Evan M. Levow

The Fourth Amendment to the U.S. Constitution protects people “against unreasonable searches and seizures” by police, usually by requiring them to obtain a warrant from a judge before conducting a search of a person or their property. Courts have identified some exceptions to the warrant requirement, including the “automobile exception.” Police can search a vehicle without a warrant if they have “probable cause” to believe a search will turn up evidence of criminal activity. This exception may be important to a driving while intoxicated (DWI) defense, since most cases begin with a traffic stop. A federal appellate court recently considered whether a driver’s residence in a state with legal marijuana gave police probable cause to search his vehicle. The court ruled in Vasquez v. Lewis that the search violated the driver’s Fourth Amendment rights.

Police must have “reasonable suspicion” of a criminal or motor vehicle offense before they may stop a vehicle on the road. This is a lesser standard than “probable cause.” Once police have stopped a vehicle, several exceptions to the Fourth Amendment’s search warrant requirement come into play. The “plain-view rule” states that police can search or investigate anything that they can see from outside the vehicle. An open alcohol container in a cup holder, for example, could lead to a DWI investigation, even if the officer did not suspect DWI when they initiated the traffic stop.

The automobile exception allows a much more thorough search of a vehicle, but an officer must be able to establish that evidence known to them at the time of the search gave them a good-faith belief that they would find contraband or evidence of a crime. Most exceptions to the search warrant requirement involve areas in which people do not have a “reasonable expectation of privacy,” or situations in which the risk of losing evidence makes obtaining a warrant impractical. The U.S. Supreme Court has found that both types of exceptions apply to motor vehicles, beginning with Carroll v. United States in 1925. Cars are not as private as homes, the court found, and their mobility presents an inherent risk of losing evidence.

July 20, 2016

Dashcam Videos from New Jersey Police Vehicles Are Public Record, According to Appellate Division Ruling

by Evan M. Levow

In any prosecution by the state, it is critically important that a defendant be able to review any and all evidence that could be used against them in court. A long series of court rulings has established defendants’ right to this evidence. Unfortunately, prosecutors and police are not always forthcoming with evidence. In driving while intoxicated (DWI) cases, footage from police dashboard cameras, also known as mobile video recorders (MVRs), can sometimes help a defendant rebut the state’s charges. According to a ruling issued by the New Jersey Appellate Division in late June 2016, Paff v. Ocean Cnty. Prosecutor’s Office, these videos are part of the public record. This ruling could be a double-edged sword for DWI defendants, however. They might be able to access their own MVR footage more easily, but so can anyone else.

The common-law right of access, as described by the U.S. Supreme Court in Nixon v. Warner Comms. in 1978, holds that the public has “a general right to inspect and copy public records and documents.” Statutes like the federal Freedom of Information Act (FOIA) and the New Jersey Open Public Records Act (OPRA) also address public access to government records. This is different from a defendant’s right to information specific to their case. In some situations, the government may have a legitimate reason to withhold information from the general public that they must provide to a defendant. Since the Ocean County ruling expands the public’s right to obtain information from the government, it is reasonable to conclude that it can benefit people charged with DWI and other offenses.

The downside to the ruling is that making MVR footage available to the public has implications for DWI defendants’ privacy rights. Footage of a traffic stop, potentially including field sobriety tests, could cause embarrassment or other negative outcomes. This is especially worrisome if video footage is released while a DWI case is still pending, or after an acquittal or a dismissal of charges.

May 16, 2016

“Protective Sweep” Exception Allowed Police to Search New Jersey DWI Suspect’s Car, According to Court

by Evan M. Levow

The Fourth Amendment to the U.S. Constitution prohibits most warrantless searches by police, requiring them first to obtain a warrant from a judge or magistrate. Various exceptions to this rule apply during traffic stops, when police can act on anything they see, hear, or smell that gives them a reasonable suspicion of illegal activity. This could result in a traffic stop for suspected driving while intoxicated (DWI) leading to more serious charges, or a stop for a lesser traffic violation leading to a suspicion of DWI. A defendant in a New Jersey DWI case, State v. Mercado, challenged the search of his vehicle, which police claimed was justified under the “protective sweep” exception to the Fourth Amendment’s warrant requirement.

The protective sweep exception is largely based on another Fourth Amendment exception known as the plain-view doctrine, which holds that police do not violate a person’s Fourth Amendment rights if they investigate something that they can easily see from a reasonable vantage point. If an officer stops a car because of something other than DWI, for example, the officer may be able to investigate possible DWI if an open alcohol container is visible inside the car. This also applies to something an officer can smell, such as the odor of alcohol or marijuana.

A 1983 U.S. Supreme Court decision, Michigan v. Long, addressed the plain-view doctrine in a traffic stop for suspected DWI. The officers searched the defendant’s vehicle because they “had reason to believe that the vehicle contained weapons potentially dangerous to the officers.” Instead, they found marijuana. The Supreme Court identified the protective sweep exception more specifically in 1990 in Maryland v. Buie. It held that an officer may search the immediate area when they have a specific reason to believe that another person is present who could pose a threat to themselves or others.

April 24, 2016

New Jersey DWI Defendant Challenges Officer’s Justification for Traffic Stop

by Evan M. Levow

The Fourth Amendment’s prohibition on unreasonable searches and seizures means that police officers cannot stop a person while driving without reasonable suspicion of an offense, and they cannot search or arrest someone without probable cause. A person charged with driving while intoxicated (DWI) and other offenses also has the right to confront their accuser, usually the arresting officer, under the Sixth Amendment’s Confrontation Clause. A DWI defendant recently appealed the denial of her motion to suppress in State v. Ciernak, challenging the sufficiency of the evidence leading to her traffic stop. She further argued that the officer lacked justification to stop her under the “community caretaking function,” an exception to the Fourth Amendment’s search-and-seizure provisions.

Court decisions at the state and federal levels have held that field sobriety tests and breath tests in DWI cases require probable cause, such as if an officer detects an odor of alcohol or other indicators of intoxication, if they observe the vehicle driving erratically, or if the driver admits to consuming alcohol. This standard is lessened, however, under the “community caretaking function,” which holds that police are permitted to stop vehicles in the absence of suspicion of any specific traffic or criminal offense, if they reasonably believe there is a danger to public safety.

The U.S. Supreme Court articulated the elements of the community caretaking function in 1973 in Cady v. Dombrowski, which involved the search of a vehicle involved in a traffic accident. The search yielded illegal firearms, and the court upheld the constitutionality of the search. The New Jersey Appellate Division has affirmed the community caretaking function in situations like driving slowly on the shoulder of a highway with the left turn signal activated for approximately one-tenth of a mile (State v. Goetaski, 1986), and remaining stopped at a green traffic light for 23 seconds (State v. Hancock, 2014). The New Jersey Supreme Court, however, held that the community caretaking function does not justify entering a person’s home without consent to conduct a welfare check without “an objectively reasonable basis to believe that there is an emergency” (State v. Vargas, 2013).

April 8, 2016

Driver’s Admission to Drinking Was Enough Probable Cause for Police to Order Breath Testing, According to New Jersey Court

by Evan M. Levow

The Fourth Amendment to the U.S. Constitution protects people from “unreasonable searches and seizures” by law enforcement. It requires police, in order to obtain a search warrant, to demonstrate “probable cause” to believe that the search will yield evidence of criminal activity. U.S. courts have identified various exceptions to the warrant requirement, but it remains a powerful safeguard of people’s rights. The New Jersey Superior Court, Appellate Division recently considered a DWI defendant’s argument that her admission to drinking alcohol during a lawful traffic stop did not provide enough probable cause to justify breath testing or field sobriety testing. The court rejected this argument in State v. Dunn, finding that her voluntary admission was enough to establish probable cause.

Courts have identified numerous exceptions to the Fourth Amendment’s warrant requirement. The “automobile exception,” for example, holds that cars and other motor vehicles may be subject to stops and limited searches without a warrant. The primary rationale for this exception is that any evidence a vehicle might contain is at risk of disappearing. This has an obvious bearing on DWI cases, many or most of which begin with a traffic stop.

The Supreme Court has held that police may stop a person and conduct a basic search, even without enough probable cause to support a warrant, if they have a reasonable suspicion that the person is in the process of committing, has recently committed, or is about to commit an offense. This is known as a “Terry stop,” after the Supreme Court’s 1968 decision in Terry v. Ohio. It applies both to in-person stops, often known as “stop and frisks,” and to traffic stops.

December 3, 2015

New Jersey DWI Arrests, Part 2: Beyond Traffic Stops

by Evan M. Levow

New Jersey police arrested a man in late October for suspected driving while intoxicated (DWI), after the vehicle he was allegedly driving collided with another vehicle. A traffic stop is perhaps considered the usual way a DWI arrest occurs, but it is not the only way. Police can detain a person on suspicion of DWI through any legal means of establishing probable cause, including random stops for the purpose of deterring DWI. New Jersey courts have held that an arresting officer does not have to witness a person actually driving to have probable cause to suspect DWI. This series looks at the various grounds for a DWI arrest.

Accidents

The recent story involves an arrest that occurred around midnight on Halloween. According to news reports, a vehicle collided with a police cruiser, causing the cruiser to go onto a concrete embankment and hit a utility pole. Failing to avoid an accident can, by itself, be a traffic offense under New Jersey law. In this case, however, police also suspected the person alleged to have been driving the vehicle of DWI.

Suspicion of DWI often arises from physical signs of intoxication, such as the odor of alcohol or the presence of bloodshot eyes, and from a person’s behavior, such as slurred speech, lack of coordination, or swaying while standing. The driver was reportedly charged with DWI with an enhancement because the alleged incident occurred in a school zone, as well as refusal to submit to breath testing and failure to yield to an emergency vehicle.

December 1, 2015

New Jersey DWI Arrests, Part 1: Traffic Stops

by Evan M. Levow

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.

October 31, 2015

New Jersey Supreme Court Reverses Its Own Rule on Warrantless Car Searches

by Evan M. Levow

The New Jersey Supreme Court issued a controversial ruling in late September 2015, State v. Witt, regarding the circumstances in which police can search a vehicle without a warrant during a traffic stop. After arresting the defendant on suspicion of driving while intoxicated (DWI), the arresting officer searched the vehicle and found a handgun. This resulted in a charge of unlawful possession of a firearm. The court found that the search was lawful, despite the lack of a warrant. This overturns the rule established by the court in 2009 in State v. Pena-Flores, sometimes also cited as State v. Fuller, which required “exigent circumstances” for warrantless vehicle searches. Federal case law allows warrantless vehicle searches, often merely with a showing of probable cause. This is commonly known as the “automobile exception” to the Fourth Amendment’s search warrant requirement. The court stated that its ruling in Witt is bringing New Jersey in line with the federal standard.

The U.S. Supreme Court first identified an “automobile exception” in 1925 in Carroll v. United States, finding that the inherent mobility of a vehicle makes it impractical to require an officer to obtain a warrant before a search—by the time they got the warrant, the vehicle might be halfway to the state line. Courts have expanded the automobile exception in the 90 years since Carroll was decided. Prior to 2009, the general rule in New Jersey was established by the New Jersey Supreme Court’s 1981 decision in State v. Alston. That case held that the automobile exception allowed police to search a vehicle without a warrant both during a lawful traffic stop and after the arrest of the vehicle’s occupants, when there was no longer any risk of the vehicle being moved.

In Pena-Flores, the court noted that it has “never subscribed fully to the federal version of the automobile exception,” and it noted that many of the cases in which it applied the automobile exception actually involved exigent circumstances. A case decided on the same day as Alston, State v. Martin, involved a vehicle whose occupants, suspects in a bank robbery, had fled the scene but could “have returned at any moment to move the car or remove the car’s contents.” Waiting to obtain a warrant before searching the vehicle would have been impractical. The court crafted a three-part rule in Pena-Flores for warrantless vehicle searches: (1) an unexpected traffic stop, (2) probable cause to suspect that the vehicle contains evidence of a crime or contraband, and (3) exigent circumstances rendering it impractical to wait for a warrant.