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For more than eight years, our law firm has been principally involved in challenges to the Alcotest device, which the state uses to measure blood alcohol content (BAC) in DWI cases. We represented the lead defendant in a 2008 case, State v. Chun, in which the New Jersey Supreme Court established strict guidelines for the admissibility of Alcotest results and required multiple changes to the device’s software. Unfortunately, New Jersey courts have since rolled back those protections, starting with a 2011 ruling in State v. Holland. We went back to court in the Chun case in 2013 to challenge the state’s failure to do what the Court ordered in 2008. While the court ruled that the state may continue using the Alcotest device, the state will have to find an alternative soon. The German company Draeger, which manufactures the Alcotest, will no longer offer a warranty for the device after 2016.

The state continues to use the Alcotest 7110 MKIII-C device, with the New Jersey State Police offering operator certification and re-certification training for state, county, and local law enforcement. A person whose BAC is 0.08 percent or higher is presumed to be intoxicated under state law. BAC evidence is not necessarily required to prove DWI in court, but without it, prosecutors must rely on physical observations of alleged intoxication. While witness testimony is subject to cross-examination and challenge on a wide range of issues, a defendant typically may only challenge BAC evidence based on the device’s maintenance, calibration, and proper functioning. The Alcotest device has raised many questions in these areas.

In Chun, we challenged the scientific reliability of the Alcotest device, which uses two methods to measure alcohol concentration in a breath sample. The court’s decision describes how the device captures the breath sample in a chamber, where it uses infrared energy to calculate the alcohol content based on energy absorption. The second method takes part of the breath sample from the infrared chamber and applies voltage to oxidize the alcohol. This creates electricity, which the device measures to determine the alcohol amount. The device requires careful calibration, with a period of at least 20 minutes between calibration and use. Continue reading

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The Appellate Division of the New Jersey Superior Court ruled in State v. Lawrence that a defendant should not have received an enhanced sentence for driving while intoxicated (DWI), even though he had two prior convictions. New Jersey law increases the penalties for second, third, and subsequent DWI convictions, but there are exceptions. The defendant relied on two facts in support of his argument against enhanced penalties. He was not represented by counsel during his first DWI case, and both his first and second DWI cases occurred more than 10 years before the current case. The Appellate Division found that, under a New Jersey statute and a New Jersey Supreme Court decision, these facts required the trial court to sentence the defendant as a first offender.

The defendant pleaded guilty to DWI before a municipal judge, after he admitted to drinking “two alcoholic beverages and two beers” before driving. The defendant had two prior DWI convictions from 1990 and 1994. Although this was his third offense, the judge sentenced him as a second offender on August 30, 2012.

New Jersey’s DWI statute imposes enhanced penalties for a second, third, and subsequent convictions. It makes exceptions, however, if enough time passes between convictions. The DWI statute, in § 39:4-50(a)(3), states that if the third offense takes place more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes. Since about 18 years elapsed between the defendant’s second and third offenses, the court applied the sentencing guidelines for a second offense. Continue reading

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New Jersey law deals very seriously with the traffic offense of driving while intoxicated (DWI). An arrest for DWI can result in a license suspension, if the State can prove the offense in court beyond a reasonable doubt. However, a person does not even need to be driving a vehicle, nor do they need to be intoxicated, to be charged with DWI under New Jersey law. The traffic offense of DWI also includes permitting another person to operate a vehicle while under the influence of drugs or alcohol. The New Jersey Supreme Court has considered cases involving this part of the statute several times and has consistently held that it is a key component of the state’s objective of preventing and punishing drunk driving.

Under New Jersey law, the offense of DWI is defined primarily 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.” The statute also includes “permit[ting] another person [who meets the above definition] to operate a motor vehicle.” The New Jersey Supreme Court discussed this part of the statute in State v. Hessen in 1996, noting that “a person who allows an intoxicated person to drive” is “as blameworthy as the drunk driver.” State v. Kashi held that the “permitting” portion of the statute is not a separate offense from DWI, but rather an “alternative evidential method” of proving the offense of DWI.

Civil liability for damages caused by a drunk driver are fairly well-known, such as if a social host or bar serves alcohol to a visibly intoxicated person. The New Jersey Supreme Court affirmed this view in the 1984 case Kelly v. Gwinnell. Imposing quasi-criminal liability, however, requires a higher standard of proof than in a civil case. The statute does not make it clear what constitutes “permitting” an intoxicated person to operate a vehicle. In theory, anyone who comes into contact with an intoxicated person could inquire as to whether they intend to drive, but it would be unwieldy and unreasonably to impose quasi-criminal liability on all of those people. Several New Jersey courts have addressed the elements that a prosecutor must prove beyond a reasonable doubt. Continue reading

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A recent decision by the Superior Court of New Jersey, State v. O’Neill, highlights two important features of New Jersey driving while intoxicated (DWI) laws. First, the court held that, under New Jersey’s implied consent law, any response other than an unambiguous “yes” to an officer’s request to submit to breath testing may be deemed a refusal. Even verbal consent by a person to breath testing, as long as her mother remained with her, could be considered “refusal” under this interpretation of the law. Second, state law requires officers to read a statement regarding implied consent and refusal, and as long as an officer reads the statement prior to taking a breath sample, the state has fulfilled its duty under the law. This applies even if the statement omits information any defendant might reasonably find useful.

The defendant was stopped by a police officer in Bernard Township, New Jersey on January 19, 2013, allegedly for speeding. The officer determined that she had consumed alcohol before driving, although the court does not say how. After placing her under arrest and transporting her to police headquarters, the officer read the New Jersey Attorney General’s Standard Statement for Motor Vehicle Operators (the “Standard Statement”) aloud to her. The defendant responded that she would agree to testing if her mother could be with her. Because this response was “conditional,” rather than “yes,” the officer read the final section of the Standard Statement, which states that she could be charged with refusal for any answer “other than ‘yes.’” The defendant replied “no.”

The officer charged the defendant with DWI, refusal to submit to breath testing, speeding, and failing to produce documentation. The defendant filed a motion to dismiss the refusal charge in the municipal court, arguing that the state did not fulfill its statutory duties because it failed to advise her of the minimum penalties if she were to be convicted of refusal. The municipal court denied her motion. The defendant pleaded guilty to DWI, and entered a conditional plea of guilty to refusal, reserving her right to appeal the dismissal motion. The Law Division denied her appeal, and the case went before the Superior Court. Continue reading

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The New Jersey Superior Court ruled that a defendant can be required to use an ignition interlock device as a penalty for refusal to submit to a breath test, even though the officer who read the required warning about refusal did not mention any penalties. The defendant in State v. McGrath argued that the officer violated his rights by failing to include the possible requirement of an ignition interlock device if he refused a breath test, and that the court should therefore dismiss the charge. He was acquitted of DWI, but convicted of refusal. On appeal, the Superior Court ruled that the lack of specific warning about an ignition interlock device did not preclude it as a penalty.

A police patrolman issued tickets to the defendant on August 20, 2011 for DWI and refusal to submit to a chemical breath test. He testified in municipal court that he arrested the defendant and took him to the police station, where he read the “New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle” aloud to the defendant. State law requires that an officer read this notice (PDF file) before asking a DWI suspect to submit to chemical testing. The most recent version of the notice at the time was finalized on April 26, 2004. It did not mention ignition interlock as a mandatory penalty for refusal, which the state enacted in 2010. The defendant refused to submit to testing.

The defendant moved to dismiss the refusal charge because of the incomplete notice. The municipal court denied the motion. It found him guilty of refusal, but acquitted him on the DWI charge. Because he had three prior DWI convictions, the court deemed the defendant a third-or-subsequent offender. His sentence included a ten-year license suspension and installation of an ignition interlock for a period lasting one year after restoration of his driving privileges. The defendant raised the same argument about the incomplete warning to the Law Division, which affirmed the refusal conviction but reversed the ignition interlock requirement. Continue reading

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Discussing legal matters on the internet is really never a good idea, and this is especially true with regard to criminal cases. A Michigan woman, who was on probation for DWI, may be returning to jail because of a Facebook post in which she reportedly admitted to drinking alcohol. The probation department, alerted by local police, tried to investigate further, and subsequently asked the court to rule her in violation of the terms of her probation. This could result in her serving the actual jail term included in her conviction.

The woman was convicted of DWI and put on probation in 2012. She was reportedly participating in a specialized probation program for DWI offenders that required her to submit to random breath tests. The probation department brought in over two hundred “high risk probationers,” including her, for testing over the St. Patrick’s Day weekend. In a Facebook post later that day, she stated that she passed the breath test even though she had drank the previous day. She reportedly only had a few weeks left on her probation period at the time.

A police officer saw the Facebook post and notified the probation department. Since consuming alcohol could constitute a violation of her probation, the probation department ordered her to submit to additional testing. A probation officer called her to tell her to come in for a urine test, which would reveal whether she had consumed any alcohol during the previous eighty hours. The woman allegedly hung up on the probation officer. The department considered this a violation of her probation, and notified the court. Continue reading

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A decision issued by the U.S. Supreme Court last year limits the ability of police to take a blood sample from a DWI suspect without consent or a warrant. Missouri v. McNeely, 133 S.Ct. 1552 (2013). The Fourth Amendment protects people from unreasonable searches and seizures, and generally requires law enforcement to obtain a warrant before searching private property. Police can claim “exigent circumstances” to justify a warrantless search, meaning that in a specific emergency situation, they cannot take the time to obtain a warrant. The McNeely case addressed claims by police that the human body’s process of metabolizing alcohol was an exigent circumstance that justified taking a blood sample without a warrant. In response to the decision, the New Jersey Supreme Court has modified its procedures for search warrant requests to ensure that judges are available to issue warrants.

The defendant in McNeely was stopped by a highway patrolman for speeding. The officer claims that defendant did not perform well in a field sobriety test, and he refused a breath test. En route to the police station, the defendant refused a breath test again, so the officer diverted to a hospital and directed a hospital technician to take a blood sample. The defendant did not consent to having blood drawn, and the officer did not obtain a warrant. Lab testing showed blood alcohol content (BAC) of 0.154 percent, almost twice the legal limit of 0.08 percent.

The state charged the defendant with driving while intoxicated, but the court granted the defendant’s motion to suppress. It held that the warrantless blood test violated his Fourth Amendment rights. When the Missouri Supreme Court affirmed the decision, the U.S. Supreme Court took the case in order to resolve a conflict with its own prior decision in Schmerber v. California, 384 U.S. 757 (1966). That case held that an officer might reasonably conclude that the breakdown of alcohol in the bloodstream constituted “exigent circumstances,” id. at 770-71, but limited its holding to the specific circumstances of the case. In McNeely, the court rejected establishing a “per se rule” that alcohol metabolism justifies a warrantless blood test. 133 S.Ct. at 1561. Continue reading

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New Jersey allows people to expunge their criminal files in many types of cases, meaning that information related to a criminal case is removed from state and local agencies’ records and will not show up in most criminal background checks. Unfortunately, state law specifically excludes motor vehicle offenses, including driving while intoxicated, from eligibility for expungement. Even arrests for DWI are ineligible. Other states are considering similar laws to allow expungement of criminal records, but the proposed laws would similarly exclude DWI offenses. This effectively places DWI offenses, regardless of the specific circumstances, in the same category as non-expungeable violent crimes.

Because it is a motor vehicle offense and not a criminal offense in New Jersey, DWI convictions are not expungible. Likewise, the arrest for DWI is not expungible, however, again, because DWI is a motor vehicle offense, the arrest is not even “of record” on any criminal database. In other words, when stopped for a DWI, the “arrest” is not entered into the National Crime Information Center (NCIC) database. No one will ever know that a DWI arrest has occurred in New Jersey, unless the Motor Vehicle Commission records are checked.

Expungement, under New Jersey law, means the “extraction and isolation” of court, jail, or law enforcement records relating to a criminal matter. NJ Rev. Stat. § 2C:52-1. This includes records of criminal investigations, arrests, detention, and criminal court proceedings. The records are not destroyed, but are removed and placed in separate storage for expunged files. The only time they might be reviewed again would be by prison administrators after a subsequent conviction. Expungement for a felony conviction is available ten years after the date of sentencing. The time period is shorter for lesser offenses. Arrests and criminal charges that never result in a conviction or other formal disposition have no waiting period before a person may petition for an expungement.

Certain offenses are ineligible for expungement. This includes convictions for violent crimes like murder, kidnapping, aggravated sexual assault, robbery, and child endangerment. NJ Rev. Stat. § 2C:52-2(b). Records of drug convictions are ineligible for expungement if the offense involved more than a specified amount of the drug. Convictions involving official corruption also may not be expunged. New Jersey law also specifically omits motor vehicle offenses from expungement eligibility, and it applies this to DWI arrests as well as convictions. NJ Rev. Stat. § 2C:52-28. An arrest for alleged DWI that does not result in a conviction therefore cannot be expunged, but an arrest for a violent felony without a conviction potentially could be. Continue reading

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The New Jersey Superior Court, Appellate Division considered the appeal of a DWI defendant in State v. Lobo that challenged the admissibility of Alcotest results. The defendant argued in part that the state’s failure to provide him with complete repair and maintenance records for the device used to test his blood alcohol content (BAC) entitled him to relief on appeal. The state’s case relied on results from an Alcotest device, which has been sufficiently controversial that the state plans on retiring it. The court rejected each of the defendant’s points of error and affirmed the conviction.

The defendant was arrested on April 29, 2011 after a traffic stop. At a State Police barracks, officers administered a breath test using a Dräger Alcotest 7110 MK III-C device. The test showed a BAC of 0.13 percent, and the defendant was charged with DWI. The court ordered the state to produce repair records and other information regarding the Alcotest device. Prosecutors later informed the court that some repair records were not available, leading the court to modify its order to require production of “repair records that exist.”

Based on the information obtained about the device, the defendant moved to dismiss the case or exclude the Alcotest results on multiple grounds. The trial court denied the defendant’s motion. The defendant entered a conditional guilty plea, which allowed him to preserve the issues raised in his motion to dismiss for appeal. Continue reading

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A series of errors by a private laboratory testing company has called hundreds of pending DWI cases into question. Blood samples sent to the lab were reportedly mislabeled, or were subject to other paperwork errors, resulting in uncertain test results. Prosecutors are trying to determine whether retesting is possible, while DWI defendants and their advocates remain skeptical that the state has revealed all of the damage done by the lab’s errors. Laws defining the offense of DWI generally do not require evidence of blood alcohol content (BAC) obtained through blood or breath testing, but chemical evidence is generally considered the simplest way for prosecutors to prove intoxication.

The district attorney’s office in San Antonio, Texas contracted with the laboratory, which is located in the Dallas/Fort Worth area, to test samples taken by police in DWI cases. The lab reportedly sent a letter to the DA’s office in May 2014 informing it that an analyst had made multiple errors in paperwork affecting hundreds of samples. The DA’s office has reportedly not made the full extent of the errors public, but one error by the analyst, who has been terminated by the lab, involved incorrect labeling of 350 samples.

The lab has reportedly sent test results to the DA’s office with notices that they cannot definitively link the results to a specific sample, although the DA’s office has denied that results have actually been mixed up between cases. The office has also denied that any samples were contaminated by the lab, although news media have reported that some documents make reference to contaminated equipment. The situation has left both prosecutors and criminal defense attorneys uncertain how to proceed with pending DWI cases. Continue reading

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