New Jersey DWI Attorney Blog

May 25, 2016

U.S. Supreme Court to Rule on Constitutionality of Criminal Refusal Statutes

The Fourth Amendment to the U.S. Constitution prohibits “unreasonable searches and seizures” by police, requiring them first to obtain a warrant from a judge. The U.S. Supreme Court is currently considering a Fourth Amendment challenge to state laws regarding “implied consent,” by which anyone operating a motor vehicle on that state’s public roads is considered to have consented to breath testing in investigations of suspected driving while intoxicated (DWI). Unlike New Jersey’s implied consent statute, the statutes at issue, from Minnesota and North Dakota, impose criminal penalties, including jail time, for refusing to submit to breath testing. The court’s eventual decision in Birchfield v. North Dakota is still likely to have an impact on New Jersey DWI law.

Evan Levow, President of the DUI Defense Lawyers Association (DUIDLA), was part of the amicus team from DUIDLA that submitted a brief to the U.S. Supreme Court in this case.

New Jersey law defines refusal as a traffic offense, which is generally not subject to as great a penalty as a criminal offense. A New Jersey refusal conviction results in a license suspension and a fine, but no jail time. For a first conviction, the period of license suspension is seven months to one year, and the fine is $300 to $500. This increases to two years’ suspension and a $500 to $1,000 fine for a second offense, and 10 years and $1,000 for a third or subsequent conviction. Penalties are further increased if an offense occurred in the vicinity of a school.

The North Dakota statute being challenged in Birchfield includes refusal in its definition of DWI, making it a misdemeanor or felony offense to refuse “a chemical test, or tests, of the individual’s blood, breath, or urine.” New Jersey’s law, it is worth noting, only requires breath testing. The penalty for a first offense does not appear to include jail time, but a second offense carries a mandatory minimum of 10 days in jail. A felony offense includes “at least one year and one day’s imprisonment.”

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.

May 10, 2016

DWI Convictions from Outside New Jersey May Count Toward Priors Leading to Criminal Charge for Driving with a Suspended License

by Evan M. Levow

Driving while intoxicated (DWI) and related offenses, including driving while license suspended (DWLS), are considered traffic offense under New Jersey law, rather than criminal offenses. Under certain circumstances, however, the state can charge DWLS as a criminal offense with a much greater penalty. This might occur when a driver has multiple prior DWI or DWLS convictions at the time of the alleged DWLS offense. A defendant recently argued to the New Jersey Superior Court, Appellate Division that a criminal DWLS charge should not apply to him because only one prior DWI conviction was from New Jersey, and the statute therefore does not allow courts to consider out-of-state convictions. The Appellate Division rejected this argument in late April 2016 in State v. Luzhak, meaning that out-of-state convictions count toward criminal DWLS.

A conviction for DWI or DWLS as a traffic offense may result in jail time and fines, in addition to a driver’s license suspension, but the maximum penalties are generally lower than those for many criminal offenses. Absent any aggravating factors, such as involvement in an accident that causes a bodily injury to someone, the maximum penalty for a third or subsequent simple DWLS conviction is a $1,000 fine and up to 10 days in county jail. A conviction for criminal DWLS, however, results in a mandatory minimum 180-day jail sentence, the same sentence imposed for a third or subsequent DWI conviction.

April 28, 2016

DWI Conviction History Brings Parent to the Attention of New Jersey Child Protection Agency

by Evan M. Levow

A driving while intoxicated (DWI) conviction comes with a mandatory period of license suspension, as well as the possibility of a fine and jail time. Subsequent convictions bring greater penalties. The offense of driving while license suspended (DWLS) also results in penalties, and it is considered a criminal offense in certain circumstances. Beyond New Jersey’s traffic and criminal statutes, DWI and DWLS may have consequences in other areas as well. In one recent case, several prior DWI convictions, and the resulting license suspension, brought two parents to the attention of state child protection workers. The New Jersey Appellate Division addressed this in its decision in New Jersey Div. of of Child Prot. and Permanency v. P.A.

The penalty for a first DWI conviction depends on the defendant’s blood alcohol concentration (BAC). If the BAC was 0.08 percent or greater, but less than 0.10 percent, New Jersey law imposes a penalty that may include a three-month license suspension, a fine of $250 to $400, 12 to 48 hours of programs at the Intoxicated Driver Resource Center, and up to 30 days in jail. If the defendant’s BAC was above 0.10 percent for the first conviction, the fine is $300 to $500, and the period of license suspension is seven months to one year. By the third or subsequent offense, the jail term is at least 180 days, and the period of license suspension is 10 years.

A first-offense DWLS carries a fine of $500. If the reason for the underlying license suspension was a DWI conviction, state law also requires the revocation of the defendant’s vehicle registration. Operating a vehicle without a valid registration can result in impoundment of the vehicle. For a second DWLS conviction, the fine increases to $750, and the defendant is subject to a one-to-five-day jail sentence. A third offense leads to a $1,000 fine and a 10-day jail sentence. Criminal DWLS occurs in certain situations involving prior DWI and DWLS convictions, and it carries a mandatory minimum sentence of 180 days’ imprisonment.

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 19, 2016

Consequences of DWI Conviction in New Jersey Extend Beyond License Suspension, Could Include Loss of Employment Benefits

by Evan M. Levow

A DWI conviction in New Jersey has numerous repercussions, starting with a three- to seven-month driver’s license suspension for a first offense. Courts may also impose a jail sentence for DWI and order a defendant to complete various services. These penalties are prescribed by the New Jersey Motor Vehicles and Traffic Regulations Code, but other areas of New Jersey law may also impose consequences for a DWI conviction. Defending a DWI case requires understanding all the ways in which the case could affect your life. The New Jersey Appellate Division reviewed the consequences of a DWI conviction for public pension benefits earlier this year in Tavaglione v. Bd. of Trustees, Police and Firemen’s Ret. Sys.

Most public employees in New Jersey at the state, county, and city levels are eligible to participate in pension funds established under state law. A pension is a type of retirement account. An employee makes contributions to the pension account from their wages. The employer establishes a trust to manage these contributions for the employees’ benefit. Upon an employee’s retirement, they receive periodic benefit payments.

Laws like the federal Employee Retirement Income Security Act (ERISA) and the New Jersey Public Employees’ Retirement-Social Security Integration Act establish guidelines that employers must follow in the management of pensions and other retirement funds. New Jersey, along with other states, also sets guidelines that public employees must follow in order to receive benefits. New Jersey law states, first and foremost, that pension benefits are dependent upon “the rendering of honorable service by a public officer or employee.”

April 13, 2016

New Jersey Appellate Division Reviews Availability of Pretrial Intervention in Criminal Cases Related to DWI

by Evan M. Levow

Pretrial intervention (PTI) is available to some criminal defendants, typically people with no prior convictions, that can potentially result in the dismissal of all charges and, in many cases, the expungement of all records of the arrest and charges. Admission to the PTI program typically requires approval from the PTI program director and the prosecutor. PTI is only available for criminal defendants, so people charged with a traffic offense like driving while intoxicated (DWI) cannot apply for the program. Driving while license suspended (DWLS) based on a prior DWI conviction, however, could be considered a criminal offense. The New Jersey Appellate Division recently heard several cases involving the PTI applications of people charged with criminal DWLS.

The PTI program, according to state law, provides “early rehabilitative services or supervision” with the goal of “deter[ring] future criminal behavior,” easing criminal courts’ dockets, and “permitting the least burdensome form of prosecution possible” for defendants charged with certain offenses. Under Rule 3:28 of the New Jersey Rules of Court, a judge may postpone criminal proceedings for a maximum of thirty-six months once a defendant has been accepted into the PTI program. If the defendant successfully completes the program, the court dismisses the charges. If the defendant fails to meet the conditions of the program, the court can place the case back on its trial docket.

DWLS becomes a fourth-degree criminal offense if it occurs during a suspension period that results from a second or subsequent DWI conviction or a prior DWLS conviction. The statute includes a mandatory minimum jail sentence of 180 days.
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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.

April 4, 2016

Alcotest Documentation Was Sufficient in DWI Case, New Jersey Appellate Court Rules

by Evan M. Levow

In any court proceeding in which the state seeks to impose penalties on a person for an alleged violation of the law, the defendant has the right to obtain evidence used by the state in the case. The process of obtaining evidence from opposing parties is known as “discovery” in both civil and criminal proceedings. Under New Jersey law, driving while intoxicated (DWI) is considered a traffic offense rather than a criminal offense, but defendants are still entitled to discovery before a case goes to trial. New Jersey courts have held, however, that a defendant’s right to discovery in a DWI case is narrower than in a criminal case. The court reviewed these rights, and the state’s obligations, in February 2016 in State v. Conroy, when it ruled on a defendant’s challenge to the state’s evidence.

New Jersey law enforcement uses a device known as the Alcotest to measure blood alcohol concentration (BAC) in breath samples obtained from DWI suspects. State law requires any law enforcement officer operating an Alcotest device to be certified in accordance with standards established by the New Jersey Attorney General. These standards, which are codified in Title 13, Chapter 51 of the New Jersey Administrative Code (NJAC), require a Breath Test Operator (BTO) to have an “operator’s certificate” that is valid at the time they administer a test to a suspect. The NJAC states that a “replica certificate” with the “facsimile signature of the Superintendent [of the State Police] and the Attorney General” is valid to establish a BTO’s credentials.

The New Jersey Supreme Court’s 2008 decision in State v. Chun established that the state must produce certain documents in any case that relies on breath testing evidence obtained with an Alcotest device. Subsequent decisions from the Appellate Division have identified types of evidence that do not fall under the requirements of Chun. Two decisions, State v. Maricic from 2010 and State v. Carrero from 2012, held that discovery in DWI cases is more limited than in criminal proceedings.

March 13, 2016

New Jersey, Other States Review Standards for “Drugged Driving” as Medical Marijuana Laws Take Effect

by Evan M. Levow

Legal prohibitions against marijuana are falling aside all across the country, as a majority of U.S. states now permit at least limited use of the drug for medical purposes. New Jersey has enacted a medical marijuana statute that allows use with a prescription and under a doctor’s supervision. A handful of states have legalized marijuana entirely, while other states, like New York, have decriminalized its use. This means that, while recreational marijuana use is still against the law in New York, it is no longer considered a criminal offense. Driving under the influence of drugs (DUID) has always been a concern for law enforcement alongside driving while intoxicated (DWI). Widespread legalization of marijuana for various uses has led to renewed attention to the issue, as well as attempts to amend existing laws in New Jersey and elsewhere.

Marijuana remains a Schedule I controlled substance under New Jersey law, but the Compassionate Use Medical Marijuana Act made the cultivation, sale, possession, and use of marijuana legal for specific purposes, under strict medical guidelines. Under current New Jersey law, the offense of DWI includes driving while under the influence of a “narcotic, hallucinogenic or habit-producing drug.” The statute does not specify an amount of any particular drug that must be present in a person’s body at the time they were driving, with the well-known exception of alcohol. A person with a blood alcohol concentration (BAC) of 0.08 percent is presumed to be legally impaired. This is known as a “per se standard.” Some states do identify a per se standard for particular drugs, such as Pennsylvania’s requirement of one nanogram of THC, the active component of marijuana, per milliliter of blood.

At least 11 states have adopted “zero tolerance” DUID policies, meaning that any amount of an illegal controlled substance in a person’s system meets the per se standard for impairment. Since different drugs remain in a person’s bloodstream for different periods of time, most states use tests that detect the presence of the drug or byproducts created as the body metabolizes the drug, known as metabolites. New Jersey’s DWI statute makes no specific mention of either a per se standard or a zero tolerance policy.