New Jersey DWI Attorney Blog

October 5, 2015

Medical Marijuana Patient Acquitted of DWI

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.

September 30, 2015

The Fifth Amendment Privilege Against Self-Incrimination in New Jersey DWI Cases

by Evan M. Levow

The Bill of Rights contains numerous important protections for people against possible overreach by the government, especially in prosecutions for alleged offenses. The Fifth Amendment protects a very important right: the privilege against self-incrimination. This means that a court cannot compel a person to testify against themselves in a criminal trial. A person invoking this privilege is often said to be “taking the Fifth.” The laws that deal with driving while intoxicated (DWI) in New Jersey and many other states, however, seem to conflict with this privilege in some ways, such as by requiring drivers to submit to breath testing. It is worth looking more closely at these laws, and how the U.S. Supreme Court and New Jersey courts have interpreted them in light of the Bill of Rights.

The state can present statements made by a defendant as evidence of guilt at trial, with some important restrictions. One of the most famous decisions by the U.S. Supreme Court, Miranda v. Arizona in 1966, established that law enforcement officers must advise a suspect of certain constitutional rights before conducting a “custodial interrogation.” The warning that has resulted from this ruling, known as the “Miranda warning,” includes the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to an attorney.

Officers must read the Miranda warning to a suspect at about the same time they place the suspect under formal arrest, and before they begin asking direct questions about the alleged offense. These are the two elements of a “custodial interrogation,” and they must be present for Miranda to apply. Statements made by a suspect during a custodial interrogation are inadmissible in court if the suspect has not been “Mirandized.”

September 24, 2015

Blood Testing in New Jersey DWI Cases

by Evan M. Levow

In prosecutions for alleged driving while intoxicated (DWI), the state often relies on a defendant’s blood alcohol content (BAC), as indicated by a breath or blood test. New Jersey’s implied consent statute imposes penalties on drivers who refuse to submit a breath sample to an Alcotest device. By driving on the roads of New Jersey, a motorist has given implied consent to breath testing. The implied consent law, however, does not include blood testing. There is no penalty for refusing to submit to a blood test in New Jersey.

The law regarding warrantless blood draws in DWI cases has changed recently, thanks to a 2013 decision from the U.S. Supreme Court (SCOTUS), and New Jersey courts are still working out some of the details. A June 2015 Appellate Division decision, State v. Majao, reviews former and current state law, as well as the evidence required to establish the admissibility of BAC results obtained through a blood test.

A New Jersey State Trooper who responded to the defendant’s one-car accident stated that the defendant’s vehicle had flipped, gone over a guardrail, and come to rest on an embankment about 15 feet from the road. The trooper testified that he spoke to the defendant in the ambulance on the way to the hospital, where he “detected the presence of alcohol on [the] defendant’s breath.” He also claimed that the defendant’s eyes appeared “bloodshot and watery.”

The trooper asked a phlebotomist at the hospital to draw blood samples from the defendant. He testified about the phlebotomist’s procedure in collecting the blood samples, and he stated that he took the samples directly to the station and logged them into evidence. Lab tests indicated a BAC of approximately 0.119%.

September 17, 2015

Five Factors Courts May Consider in Determining Whether a Driver Was Impaired in a New Jersey DWI Case

by Evan M. Levow

A common misconception in driving while intoxicated (DWI) cases involves breath testing and blood alcohol content (BAC). New Jersey’s DWI statute states that a person who operates a vehicle with a BAC of 0.08 percent or higher commits a violation, but this is not the only way the state can prove intoxication or impairment. The statute actually defines the offense in two ways: driving with a BAC above a minimum amount, or driving “under the influence” of alcohol or other drugs. Even without any BAC evidence, prosecutors may still be able to prove that a defendant was “under the influence,” intoxicated, or otherwise impaired. The Appellate Division of the New Jersey Superior Court issued a ruling several months ago in State v. Kessler, which identified various methods of presenting evidence of intoxication or impairment.

A police officer pulled the defendant over at about 1:22 a.m. He had allegedly observed the defendant swerve from the left lane of the highway into the center lane, putting him in the path of a tractor-trailer. He also claimed that the defendant was driving without his headlights on. The officer testified that the defendant’s eyes appeared “bloodshot and watery,” and the officer could smell alcohol. The defendant allegedly refused to submit a breath sample and did not perform well on several field sobriety tests (FSTs).

The defendant was charged with DWI, refusal to submit to breath testing, reckless driving, and other offenses. At trial in the municipal court, the defendant presented testimony from several expert witnesses. One witness testified about difficulties faced by some people on the horizontal gaze nystagmus (HGN) test. Another witness testified about conditions, both congenital and injury-related, affecting the ability to perform FSTs like the walk-and-turn and one-leg-stand tests. The defendant denied drinking any alcohol on the night of his arrest.

August 31, 2015

Defendant in New Jersey DWI Case Claims Act of Driving Was Justified to Avoid “Greater Evil”

by Evan M. Levow

In some situations, a defendant in a criminal case can claim that their actions were justified under the specific circumstances that existed at the time of the alleged offense, since they were necessary to avoid or prevent a different crime or injury that would have been objectively worse. This is generally known as the defense of “necessity.” It comes up occasionally in New Jersey driving while intoxicated (DWI) cases. Successfully arguing this in court can be very difficult, as indicated by several recent decisions from the New Jersey Superior Court, Appellate Division. Its ruling in State v. Giaquinto, issued in June 2015, offers a particularly stark example of this.

The court’s opinion in Giaquinto, unlike most appellate opinions, has a certain dramatic flair, perhaps because of the harrowing details of the case. Police in Sparta Township responded to a report of a hit-and-run at about 1:00 a.m. and located the defendant’s car “traveling at a very low rate of speed.” The defendant reportedly had “scratches on her legs and [was] wearing nothing but a leather jacket.” The officer testified that the defendant had slurred speech and “a strong odor of alcohol,” and she denied hitting a wall in her car or being naked. The officer eventually convinced her to put on a dress he saw in the backseat. She reportedly failed several field sobriety tests and failed to provide sufficient breath for the Alcotest. Another officer testified that she “rang[ed] from calm and cooperative to belligerent and verbally abusive.”

At trial, the defendant testified that, on the night of her arrest, she met an acquaintance identified as Maggie at about 7:15 p.m. at a restaurant, where she drank two martinis. She then went to Maggie’s house at 10:00 p.m. “to meet her dog, the same breed as defendant’s.” The defendant said Maggie gave her a glass of wine that tasted “bizarre.” She claimed to have little memory of the rest of the night, except for “spotty” memories of a sexual assault.

August 29, 2015

New Jersey Appellate Courts Are Limited in Their Ability to Review Factual Findings in DWI Cases

by Evan M. Levow

A prosecution for alleged driving while intoxicated (DWI) in New Jersey usually begins in the municipal court of the city, borough, town, township, or village in which the arrest occurred. A defendant can appeal a DWI conviction for reversible error, abuse of discretion, and other grounds. A July 2015 appellate court decision, State v. Hwang, offers an overview of the appeals process in New Jersey DWI cases.

An appeal from a municipal court order or verdict goes to the New Jersey Superior Court, Law Division in the county where the municipal court is located. From there, it would go to the Superior Court, Appellate Division. At this level of appeal, the court has much less discretion to review the lower courts’ findings of fact. Further appeals go to the New Jersey Supreme Court, and finally the United States Supreme Court.

A Hillsborough Township police officer pulled over the defendant in Hwang in October 2012 after allegedly witnessing her swerve across the median line several times. He testified that she failed several field sobriety tests, refused to comply with his orders, and failed to provide an adequate breath sample for the Alcotest. Prosecutors charged her with DWI, refusal to submit to breath testing, failure to stay in the right lane, and resisting arrest. While the case was pending, the defendant sued the arresting officer, claiming illegal arrest and assault. She later filed a federal civil rights lawsuit against the township.

August 20, 2015

Felony DWLS Conviction Overturned by New Jersey Appellate Court

by Evan M. Levow

A conviction for driving while intoxicated (DWI) in New Jersey usually results in a driver’s license suspension, with the length of time varying based on the defendant’s blood alcohol content (BAC) and number of prior convictions. Driving while license suspended (DWLS) is a separate traffic offense under New Jersey law, which rises to the level of a felony criminal offense in certain circumstances. The New Jersey Superior Court, Appellate Division issued an important ruling recently in State v. Diaz, reversing a criminal DWLS conviction based on the underlying reason for the defendant’s license suspension.

DWLS is a fourth-degree criminal offense in some situations, with a mandatory minimum jail sentence of 180 days. This provision became effective on August 1, 2011. It applies in two situations, described in § 2C:40-26 of the New Jersey Revised Statutes. These are when the defendant has a prior conviction for DWLS, which occurred during a period of suspension for a DWI conviction, or when the defendant’s current license suspension is due to a second or subsequent DWI conviction.

In the Diaz case, the defendant was arrested in August 2013 and charged with DWI, DWLS, and several other offenses. According to the court’s opinion, the defendant’s driving record showed two prior DWI convictions and three DWLS convictions. The DWI convictions occurred in March 2008 and April 2009. The April 2009 case also included a DWLS conviction. The other DWLS convictions were in January 2011 and February 2013. The timing of the various suspensions was critical to determining whether the defendant committed criminal DWLS, or merely a traffic offense, in August 2013.

August 12, 2015

New Jersey Supreme Court Retroactively Applies 2013 U.S. Supreme Court Ruling on Forced Blood Draws in DWI Cases

by Evan M. Levow

The New Jersey Supreme Court (NJSC) recently reversed a decision by the Superior Court, Appellate Division regarding a warrantless blood draw in a DWI case. The decision, State v. Adkins, applied a 2013 ruling by the U.S. Supreme Court (USSC), Missouri v. McNeely. Many courts had allowed police to take blood samples from DWI suspects without a warrant under the “exigent circumstances” exception to the Fourth Amendment’s search-warrant requirement, based on the fact that alcohol breaks down in the bloodstream over time. The USSC ruled in McNeely that “the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” In Adkins, the NJSC ruled that McNeely “must apply retroactively to cases that were in the pipeline” at the time of the USSC’s ruling. It reversed the Appellate Division’s ruling but remanded the case for further proceedings regarding whether other “exigencies” might have been present.

The defendant in Adkins was involved in a single-car accident in December 2010 and was arrested on suspicion of DWI. The court noted that police, for unknown reasons, did not collect a breath sample from the defendant, even though an Alcotest device was available. Instead, they took the defendant to a hospital for a blood draw. Police claimed that the defendant did not object to the blood draw, but the state did not contend that he consented to the procedure.

The USSC ruled in 1966’s Schmerber v. California that forced, warrantless blood draws in DWI cases do not violate the Fifth Amendment privilege against self-incrimination, and they may be justified by the “exigent circumstances” exception to the Fourth Amendment. The court did not, however, address specific “exigencies.” McNeely narrowed Schmerber’s scope by excluding alcohol metabolism as an exigent circumstance.

August 3, 2015

Is a “Necessity” Defense Possible in a New Jersey DWI Case?

by Evan M. Levow

The defense of “necessity” claims that a person charged with an offense was justified in committing an otherwise unlawful act, and therefore should not face legal penalties. New Jersey law, as interpreted by New Jersey courts, sets a high bar for a defendant claiming necessity, but once a defendant clears this bar, the burden shifts to the state to disprove the necessity defense beyond a reasonable doubt. A recent decision by the New Jersey Superior Court, Appellate Division, State v. A.T., considered whether a defendant could raise the necessity defense in a DWI case. While the court ultimately affirmed the defendant’s conviction, it addressed some important criteria for establishing necessity in such a case.

The defendant in A.T. was found guilty of third-offense driving while intoxicated. She was sentenced to 180 days in jail, a 10-year license suspension, and one year of ignition interlock use. The Law Division affirmed the verdict and sentence, and the case went to the Appellate Division. The necessity defense arose from the circumstances that led to the defendant being behind the wheel on the night she was arrested. She was allegedly concerned about domestic violence, and unfortunately the various courts’ rulings follow the common pattern of demanding a high burden of proving such a threat.

The defendant testified that she was at her boyfriend’s apartment, drinking beer, when her boyfriend’s brother told her to leave. She refused to leave, and she claimed that he became upset, began yelling, and threatened to call the police. He also, she alleged, prevented her from using the telephone. She testified that both she and her boyfriend tried to calm the brother down, and they told him that the defendant was in no condition to drive. She claimed that she left the apartment because “she feared physical abuse and arrest.” She drove part of the way home, but then she changed her mind and turned around. She testified that she did not think she could get all the way home safely, and that if the police were at her boyfriend’s apartment, they might be able to help her. On her way back to the apartment, she struck two parked vehicles, which led to her arrest.

July 28, 2015

New Jersey Courts Hold that Chun’s Twenty-Minute Waiting Period in DWI Cases May Not Be Used for Delay

by Evan M. Levow

The New Jersey Supreme Court’s 2008 ruling in State v. Chun is one of the most important decisions affecting the rights of DWI defendants in this state. It caused major changes in how the state uses Alcotest machines to collect breath samples from DWI suspects. Chun also established mandatory procedures that safeguard DWI suspects against inaccurate test results, including a 20-minute waiting period prior to a breath test. In some situations, however, an individual could open themselves up to a charge of refusal to submit to a breath test, if an officer concludes that they are intentionally stalling.

Chun established that an officer must wait 20 minutes before collecting breath samples from a suspect, in order to ensure that no foreign substances are present in or around the suspect’s mouth that could affect the test results. During this time, the officer who will administer the test must observe the suspect to see if they place anything in their mouth, or if they swallow or regurgitate anything. If the officer notices anything entering or exiting the person’s mouth, notices that the person has gum or chewing tobacco in their mouth, or sees the person touch their mouth with their hand or any other object, the 20-minute observation period must start over.

This waiting period could come into conflict with New Jersey laws regarding implied consent to breath or blood testing. An individual who is instructed to provide a breath sample based on probable cause to suspect DWI may face a separate charge for refusal if they give anything short of total cooperation to the officer. Courts have sustained refusal convictions in cases where individuals failed to submit enough of a sample for the device to conduct an accurate test, and even cases in which a defendant agreed to submit a breath sample but tried to add a condition for doing so. This raises the question of whether a New Jersey DWI defendant could face a refusal charge for requiring multiple re-starts of the 20-minute Chun observation period.