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The law of driving while intoxicated (DWI) in New Jersey gives the state multiple ways to establish that a defendant was impaired by alcohol or another drug. Blood alcohol content (BAC) is not required for prosecutors to obtain a conviction. Prosecutors can also offer testimony from an arresting officer describing a defendant’s performance on field sobriety tests, their behavior and demeanor, and other observations. Some police departments make use of drug recognition evaluators (DREs), officers with specialized training in identifying the effects of drugs other than alcohol.

The New Jersey Appellate Division considered a defendant’s challenge to DRE testimony in late 2015 in an unpublished decision, State v. Vazquez.  The court misinterpreted New Jersey case law and found  that New Jersey courts have recognized them as qualified experts.  That is incorrect.  The court relied on a 2006 New Jersey Supreme Court decision, State v. Bealor, which held that DRE testimony was admissible in a marijuana case, because the court thought that marijuana intoxication is so easy to spot, and accepted the DRE’s testimony that Mr. Bealor was under the influence of marijuana.  Bealor was wrongly decided, and it is now being used to support a proposition that is incorrect.

Prosecutors can use the New Jersey DWI statute to charge someone with driving under the influence of drugs (DUID), which requires proof that they were driving “while under the influence of…[a] narcotic, hallucinogenic or habit-producing drug.” Breath, blood, and urine tests are at least somewhat effective at ascertaining the amount of alcohol in a person’s system, and the way the human body typically metabolizes alcohol allows reasonable estimates, based on a person’s BAC, of how recently they were drinking. Other drugs are not as easily testable, which means that prosecutors must rely on other types of evidence to prove impairment. This is where some departments have started using DREs.

A DRE receives training in how to recognize the effects of various drugs in order to determine whether a person is legally impaired, usually after an arrest for suspected DWI or DUID. The International Association of Chiefs of Police oversees training and certification. DREs use a 12-step process that begins with a review of BAC results, if any, and an interview of the arresting officer. The DRE then conducts an examination of the arrestee, which includes checking their pulse, examining their eye movements (similar to a field sobriety test), conducting tests of physical coordination, taking their blood pressure, and checking their pulse again. It also includes a “muscle tone” examination, based on the theory that “certain categories of drugs may cause the muscles to become rigid,” while others may make them “very loose and flaccid.”  This 12 step process has not been validated or held to be scientifically reliable in New Jersey.  Because the Vazquez opinion is unpublished, it carries no precidential weight.

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When prosecutors in New Jersey pursue a case of alleged driving while intoxicated (DWI), they frequently rely on evidence of a defendant’s blood alcohol content (BAC) obtained through breath or blood testing. Anyone with a BAC of 0.08 percent or above is presumed to be impaired for the purpose of a DWI case. Police in this state typically use a device known as an Alcotest to collect and test breath samples from DWI suspects. We were counsel in a case that went before the New Jersey Supreme Court in 2008, State v. Chun, which established multiple guidelines that the state must follow in order to use BAC evidence obtained with an Alcotest device. The state Supreme Court recently reversed a DWI conviction in another case, State v. Kuropchak, based on improper documentation regarding the Alcotest used by police.

Police in New Jersey currently use the Draeger Alcotest® 7110 MKIII-C. The DWI suspect blows into a tube, and the device analyzes the breath sample to estimate the person’s BAC. It bases its estimate on a “2,100 to 1 blood/breath alcohol ratio,” meaning that its programming assumes that 2,100 parts of breath contain the same amount of alcohol as one part of blood. This assumption was one of the many features of the Alcotest that were challenged in Chun.

The New Jersey Supreme Court ruled in Chun that the Alcotest is generally acceptable by scientific standards, but it imposed a variety of conditions on police using the device, and on prosecutors seeking to admit BAC evidence obtained with the device. The state must produce two documents relating to the calibration and maintenance of the device. It must produce a Certificate of Analysis showing that the device has the proper “simulator solution,” a solution typically designed to return a 0.10 percent result to use as a comparison to the breath sample. The state must also produce the most recent report documenting maintenance of the device, known as the “Calibrating Unit New Standard Solution Report.”

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Law enforcement agencies in New Jersey use a device known as the Alcotest to determine the blood alcohol content (BAC) of individuals suspected of driving while intoxicated (DWI). A 2008 decision by the New Jersey Supreme Court in which we represented several parties, State v. Chun, determined that the Alcotest is scientifically reliable, provided that the state meets certain conditions. The decision also established procedures that law enforcement must follow when using the device. The New Jersey Appellate Division heard a case last year, State v. Sorenson, that asked it to decide whether a failure by police to follow certain parts of Chun required suppression of evidence obtained with an Alcotest device.

BAC evidence is not required in a DWI case. A court can convict a defendant of DWI based solely on the testimony of officers who observed the defendant’s appearance and behavior. This is known as an “observational violation.” The New Jersey DWI statute also provides, however, that any person with a BAC of 0.08 percent or higher is presumed to be under the influence of alcohol. A DWI case based on BAC results is known as a “per se violation,” since it rests on the presumption of impairment. For a first DWI offense, the penalties are the same for a per se violation when the defendant’s BAC is 0.08 percent or higher, but lower than 0.10 percent, as they are for an observational offense. The penalties are greater, however, for a per se violation with a BAC of 0.10 percent or higher.

After an individual submits a breath sample to an Alcotest machine, the device runs various tests and prints out a Alcohol Influence Report (AIR), stating the BAC detected in the sample. The AIR frequently serves as the state’s evidence of impairment. Under Chun, police are required to provide a copy of the AIR to a defendant or a defendant’s counsel.

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The Fifth Amendment to the U.S. Constitution states that a person may not, “for the same offense…be twice put in jeopardy of life or limb.” This is known as the “double jeopardy” clause of the Constitution. Courts have interpreted it to mean—in a very general sense—that the government cannot charge a person with a criminal offense if they have been acquitted or convicted of an offense based on the same act or incident. The New Jersey Appellate Division, in State v. Sorenson, recently considered a DWI defendant’s claim that double jeopardy barred the prosecution’s appeal. A common misconception about double jeopardy is that it prevents the state from appealing any ruling in a criminal case, since it often does not apply to non-final judgments in trial courts.

The double jeopardy clause states that prosecutors cannot charge someone for the same offense more than once. Each phrase in the clause, particularly the phrase “twice put in jeopardy,” has been subject to extensive judicial scrutiny. Double jeopardy unquestionably applies once a person has been acquitted or convicted of a particular offense. For example, if a person is charged with DWI and acquitted (or convicted) by a municipal court, the state cannot charge that person with DWI again for the same incident. Prosecutors also could not appeal the acquittal itself.

When a case does not result in a final judgment of conviction or acquittal, however, double jeopardy becomes much more complicated. If a court dismisses a case based on a defendant’s pre-trial motion, the prosecution might be able to appeal that order. If an appellate court rules in the state’s favor, the case would proceed as though the dismissal had not occurred.

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In New Jersey, driving while intoxicated (DWI) is considered a motor vehicle offense, not a criminal offense. This has important implications for how a DWI case may proceed. In most DWI cases, jail time is largely at the court’s discretion, but fines and driver’s license suspensions are not. One situation exists, however, in which an offense directly related to DWI is considered a criminal offense, which has a mandatory minimum sentence of 180 days. This occurs when a person is charged with driving while license suspended (DWLS), when the suspension is due to a conviction for DWI or certain related offenses. A New Jersey appellate court recently considered an appeal of a conviction under this statute in State v. Wagner.

A first-time DWI conviction carries a mandatory license suspension of three months. The length of the suspension increases for subsequent convictions, up to a maximum of 10 years. Other offenses may also lead to the suspension of one’s driver’s license, so the state has a DWLS statute that classifies the general act of driving with a suspended license as a motor vehicle offense. Penalties include a fine and, in some circumstances, the revocation of the defendant’s motor vehicle registration.

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A new law that will take effect in New Jersey in several months will reduce the waiting periods for the expungement of criminal records, which is the process by which a person may have records of arrests, charges, and convictions removed from the public record. Unfortunately, New Jersey law does not allow expungement in driving while intoxicated (DWI) cases. Post-conviction relief (PCR) is the only means of removing a DWI case from one’s driving record. The new law is still good news for New Jersey, and it should be of interest to people charged with a criminal offense in connection with a DWI.

New Jersey law defines “expungement” as “the extraction and isolation of all records on file” with courts, law enforcement agencies, jails, and prisons regarding arrests, trials, convictions, and other dispositions. Records to be expunged include warrants, jail rosters, fingerprints, mugshots, and court dockets. Certain serious criminal offenses are excluded from eligibility for expungement, such as murder, manslaughter, rape, robbery, arson, and conspiracy to commit any of the listed offenses. For any other criminal offense, a person may petition for expungement after a specified period of time has elapsed, provided they have no other criminal convictions and meet the statute’s other requirements. For disorderly persons offenses and petty disorderly persons offenses, the waiting period before eligibility for expungement is shorter than for criminal offenses.

Motor vehicle offenses, which include DWI, are expressly excluded from eligibility for expungement. The only method allowed by New Jersey law for removing a DWI from a driving record is the PCR process, by which a person files a petition in the municipal court that handled the DWI case. Rule 7:10-2(c) of the New Jersey Rules of Court sets out the grounds for PCR, most of which relate to circumstances at the time of the conviction. These include a violation of the petitioner’s constitutional rights during conviction proceedings, the court’s lack of jurisdiction to impose a sentence, and the imposition of a sentence that deviates from state law. The rule also allows PCR based on common-law principles and grounds found in habeas corpus cases. In other words, PCR is only available upon a showing of error or impropriety during the original DWI proceeding, while expungement is often available based on good behavior and the passage of time.

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New Jersey law regulates alcohol in numerous ways, from licensing sellers to penalizing the possession of alcohol by minors. These laws are distributed among various state codes, including the provisions on driving while intoxicated (DWI) found in Title 39, “Motor Vehicles and Traffic Regulation.” Laws dealing with the possession of alcohol by minors, defined as anyone under the age of 21 years, are found in both Title 33, “Intoxicating Liquors,” and Title 2C, the New Jersey Code of Criminal Justice. Local governments in New Jersey, such as cities and boroughs, may enact their own ordinances regarding MIP, which has created some interesting legal history. The offense of minor in possession of alcohol (MIP) has some similarities to DWI law in New Jersey.

The most obvious similarity between DWI and MIP is that they both involve alcohol. They may also both result in a driver’s license suspension. If we look a bit deeper, we see that neither offense is generally considered “criminal” under state law. DWI is a traffic violation, while MIP is a “disorderly persons offense,” meaning that it can only result in a fine, not jail time, and it does not result in a criminal conviction record—although it might still appear in a background check. Since prosecutions for DWI or MIP are not considered criminal proceedings, a defendant is not entitled by law to a trial by jury or other features of the criminal justice system.

The New Jersey Code of Criminal Justice states that a minor commits an offense if they “knowingly possess[ alcohol] without authority,” or if they “knowingly consume[]” alcohol in public, in a school, or in a motor vehicle. If the person is in a vehicle, the statute imposes an additional penalty of six months’ license suspension, apparently regardless of whether the person was driving.

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Ignition interlock devices (IIDs) are becoming more and more common in driving while intoxicated (DWI) cases in New Jersey and around the country. For a certain period of time after some DWI convictions, an individual may only operate a vehicle equipped with an IID, which requires the person to submit a breath sample and prevents the ignition key from turning if the person’s blood alcohol content (BAC) is too high. The IID requirement acts as a safeguard against drinking and driving by people with DWI convictions, while still allowing them to drive when necessary. A lawsuit against a city government demonstrates a possibly unexpected consequence of this policy:  claims of negligence against cities and other local governments for failing to ensure that a person ordered to use an IID actually does so. This type of lawsuit adds a civil—as in, non-criminal—element to DWI law.

The installation of an IID is mandatory for certain DWI offenses, or it may be within a court’s discretion to order its use. Before a person may start the vehicle, they must blow into a device that, just like a breathalyzer, measures BAC levels. The maximum allowable BAC is usually less than the “legal limit” of 0.08 percent, since the point of the device is to prevent a person from driving before they near the point of legal impairment.

New Jersey’s IID law expressly acknowledges that some people with DWI convictions will continue to drive anyway. For many first DWI offenses, New Jersey judges have discretion to order the use of an IID for six months to one year after driver’s license restoration. If a first DWI involves BAC of at least 0.15 percent, however, an IID is mandatory, both during the license suspension period and for six months to a year afterwards. The penalties for a second, third, or subsequent DWI offense include mandatory IID installation during the license suspension period and for an additional one- to three-year period. A person commits a new offense if they violate an order to use an IID, and they could also face additional penalties in the underlying DWI case.

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Laws in all 50 U.S. states, the District of Columbia, and Puerto Rico state that a person who drives with a blood alcohol content (BAC) of 0.08 percent or higher is presumed to have committed the offense of driving while intoxicated (DWI). This “legal limit” for BAC may be lower for certain individuals, including people under the age of 21, school bus drivers, and commercial truckers. Laws against DWI have existed for almost as long as the automobile itself, but the use of BAC as an indicator of impairment is much more recent. The National Transportation Safety Board (NTSB), the federal agency that investigates major accidents and makes safety recommendations, has recommended lowering the legal limit even further, to 0.05 percent. This has met with opposition from unexpected sources and has failed to gain much traction among state lawmakers.

New Jersey was one of the first states to enact a law against DWI. The law, passed in 1906, simply stated that “[n]o intoxicated person shall drive a motor vehicle.” Current law in this state, of course, goes into much more detail. A first DWI offense with BAC of at least 0.08 percent, but less than 0.10 percent, is subject to penalties that might include a fine between $250 and $400, up to 30 days’ imprisonment, and a three-month license suspension. Penalties are higher if the BAC is 0.10 percent or above, or for a second or subsequent offense. BAC evidence is not necessary for a New Jersey court to convict someone of DWI, but it is a prominent part of many, possibly most, DWI cases.

The NTSB has recommended lowering the legal BAC limit to 0.05 percent since at least 2013. It issued a report in April of that year with multiple proposed legislative changes, including a 0.05 percent legal limit. NTSB officials have repeated this recommendation several times since then, most recently in mid-December 2015. Supporters claim that it will further reduce the number of traffic fatalities, while others say that a lower BAC limit is unlikely to have such an effect. Mothers Against Drunk Driving (MADD) came out against the recommendation in 2013, saying it would be a “waste of time.”

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In order to prove that a person has committed the offense of driving while intoxicated (DWI), the state must prove impairment by alcohol or another intoxicating substance. Prosecutors can do this in several ways, including blood alcohol content (BAC) based on a blood or breath test. A BAC of 0.08 percent or higher is presumed to be evidence of impairment. It is possible for a court to convict a person of DWI in the absence of BAC evidence, or even with a BAC that is below 0.08 percent, based on other evidence of impairment. Could a person with a BAC above 0.08 percent, on the other hand, overcome the presumption of impairment? A recent case out of New York shows how a rare medical condition led to an unusually high BAC result, although this is not likely to be a common defense.

New Jersey’s DWI statute specifically mentions a BAC of 0.08 percent or above in its definition of the offense, but it also states that a person commits DWI if they drive “while under the influence of intoxicating liquor” or a similar substance. Drivers in New Jersey are subject to the implied consent law regarding breath testing, meaning that they can be penalized for refusing to submit a breath sample. Even without BAC evidence, prosecutors may prove impairment through other means, such as field sobriety tests performed during a traffic stop. An officer can testify about observations like slurred speech or an alcohol odor. If the state has BAC test results above the legal limit, however, prosecutors may not bother with an officer’s testimony as much, which appears to have been a factor in the recent New York case.

According to local news coverage, police in the Buffalo, New York area stopped a 35-year-old schoolteacher one evening in October 2014, based on a 911 caller’s report of a vehicle driving erratically. The officer claimed to have smelled alcohol and stated that the defendant’s speech was slurred, and her eyes appeared “bloodshot” and “glassy.” The defendant reportedly admitted to having three cocktails several hours earlier. Her BAC test results, however, showed 0.33 percent, which is over four times the legal limit and close to the point of medical emergency. Despite this result, her condition did not match that of someone about to go into a coma.

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