New Jersey DWI Attorney Blog

July 20, 2020

New Jersey DWI Law Does Not Require Police to Witness Actual Driving by a Defendant

The law behind driving while intoxicated (DWI) in New Jersey is more complicated than it might appear at first glance. Multiple court decisions interpreting the DWI statute have held that prosecutors do not have to provide direct evidence that a person was driving. They only need to prove that a person had both the intent and the opportunity to drive while impaired by alcohol. The New Jersey Superior Court, Appellate Division affirmed this view of the DWI statute in a February ruling. It denied the appeal of a defendant who was convicted after police found him sleeping in his car with the engine running. This is an important decision for both DWI lawyers and the general public.

New Jersey’s DWI statute establishes a two-part definition of the offense. The state must prove that a defendant (1) operated a vehicle (2) while impaired by drugs or alcohol. Prosecutors can prove the second point in several ways, including evidence of blood alcohol content (BAC) and eyewitness testimony from police about the defendant’s appearance and behavior. Much discussion of DWI defenses focuses on how the state proves impairment. Maybe the police failed to maintain the Alcotest device adequately, and the BAC evidence should be thrown out. Perhaps the officer who pulled a defendant over lacked a legal justification for the stop. Sometimes, however, defendants dispute the first element of the offense.

As the Appellate Division notes in its February decision, New Jersey courts have taken a broad view of what it means to “operate” a vehicle. In a 1987 decision, the New Jersey Supreme Court stated that “a pragmatic definition of this term is necessary” in order to fulfill the purpose of the DWI statute, which is “to deal with the risk that intoxicated drivers will cause harm to themselves and to others.” The court found that intoxicated drivers can pose this sort of risk “even before [they] may have put [their] car in motion.” It cited a 1963 decision, in which it held that “a person may be “operating” a motor vehicle…even when the vehicle has not been moved.”

June 25, 2020

New Jersey Municipal Courts Can Begin Holding In-Person DWI Trials June 22, According to Ruling by State Supreme Court

by Evan M. Levow

New Jersey’s court system slowed to a near-halt in March 2020, along with much of New Jersey’s economy, in an effort to fight the spread of the novel coronavirus and the illness it causes, COVID-19. Municipal courts, which hear New Jersey DWI cases, began to resume certain proceedings in April. They have been conducting most matters remotely via telephone or videoconferencing technology since May. Under a plan issued by the New Jersey Supreme Court, this has been known as “Phase 1.” The court has announced that Phase 2 will begin on Monday, June 22. While municipal courts will continue to handle most matters remotely, they will be able to hold DWI trials and other matters in person, subject to social distancing and other public health guidelines.

DWI Trials in Municipal Court

DWI is not a criminal offense under New Jersey law. It is considered a motor vehicle offense. The penalties for a DWI are relatively minor when compared to various criminal offenses, with a maximum jail sentence of 180 days and a maximum fine of $1,000 for a third or subsequent offense. At the same time, the full range of procedures and constitutional protections available in criminal prosecutions do not apply to DWI cases.

The main difference is the nature of trials in DWI cases. Municipal courts have original jurisdiction over all DWI prosecutions, and defendants are not entitled to a trial by jury. A municipal judge will hear the case, render a verdict, and decide on a sentence.

June 5, 2020

New Jersey Court Voids DWI Conviction Based on Tainted Alcotest Evidence

by Evan M. Levow

New Jersey prosecutors can use evidence of blood alcohol content (BAC) to prove that a person committed the offense of driving while intoxicated (DWI). Under state law, driving a vehicle on a public road implies consent to breath testing to determine BAC. Refusal to submit to breath testing is a separate motor vehicle offense. Law enforcement began using a device known as the Alcotest in 2005, and it is now the standard device throughout the state for BAC testing. Police must follow specific procedures regarding maintenance and calibration of these devices, as set forth in a 2008 ruling by the New Jersey Supreme Court. A decision by the court in late 2018 called over 20,000 New Jersey DWI cases into question based on falsified maintenance records. In June 2019, the Appellate Division cited that decision when it voided the conviction in one of the affected cases. If you have been stopped in New Jersey and asked to submit to breath testing, it is important that you contact a New Jersey DWI attorney as soon as possible to protect your rights under the law.

Under New Jersey law, BAC of 0.08 percent or higher creates a presumption that a person was under the influence of alcohol. This is known as per se DWI. Prosecutors can also establish that a person was impaired by alcohol through the “observational method.” This typically involves police officers’ testimony about their observations of a defendant’s appearance, behavior, and performance on field sobriety tests.

The New Jersey Supreme Court’s 2008 ruling established procedures for calibrating the Alcotest device, which requires careful maintenance to ensure accurate results. Police must calibrate the devices on a regular basis, and must follow standards set by the National Institute of Standards and Technology (NIST) when doing so. They must keep records of these calibrations, and must introduce those records as evidence along with BAC test results in DWI cases.

May 6, 2020

Enforcement of New Jersey DWI Laws During Coronavirus Lockdown

by Evan M. Levow

Much of New Jersey is currently shut down because of the global COVID-19 pandemic, which has hit this state particularly hard. In some ways, this has slowed enforcement of driving while intoxicated (DWI) laws, but in other ways, New Jersey police are even more on alert. Municipal courts across the state remain closed under an order from the New Jersey Supreme Court, so any pending or new cases must wait for court dates. The governor’s emergency orders, on the other hand, require people to limit their movement and interactions with others, in the hopes of slowing the spread of the virus. Police are on the lookout for violators. Recent news coverage of arrests during the coronavirus lockdown has also shown how DWI enforcement can involve both criminal and motor vehicle laws.

DWI During a Lockdown

The New Jersey DWI statute defines the offense as operating a motor vehicle while under the influence of alcohol or drugs, or while one has blood alcohol content (BAC) of 0.08 percent or higher. Police can pull drivers over if they have reasonable suspicion that they have committed a traffic offense, such as running a stop sign, failing to use a turn signal, or driving erratically. If additional evidence leads them to suspect DWI, such as the odor of alcohol or the driver’s appearance or behavior, they may conduct a further investigation. This could include field sobriety tests or breath testing to determine BAC.

The executive orders issued by the governor in response to the coronavirus pandemic have given police in New Jersey additional justifications for pulling over drivers. It is too early to know if this will lead to more DWI arrests, but it is a possibility. On March 21, 2020, the governor issued Executive Order 107, which instructs “all New Jersey residents [to] remain home or at their place of residence” unless they are performing essential tasks like going to work, seeking medical attention, or going to the grocery store. State law allows law enforcement to penalize violations of this order as a disorderly persons offense.

February 22, 2020

Appellate Division Rules on Fourth and Fifth Amendment Challenges to New Jersey DWI Conviction

by Evan M. Levow

The Fourth and Fifth Amendments to the U.S. Constitution protect people against misconduct by police and prosecutors. In cases of suspected driving while intoxicated (DWI), New Jersey police are bound by various decisions of the U.S. and New Jersey Supreme Courts that apply these constitutional rights. Police cannot stop a person’s vehicle, for example, unless they have reasonable suspicion of DWI or other unlawful activity, or as part of an established temporary DWI checkpoint. A decision issued by the New Jersey Superior Court, Appellate Division in September 2019 addressed a different situation, which is less common in DWI cases. Police entered the defendant’s home, questioned him there, and then arrested him for DWI. The court considered whether this violated his rights under the Fourth or Fifth Amendments.

New Jersey’s DWI statute provides prosecutors with two ways to prove that a defendant was under the influence of alcohol or other drugs. If breath, blood, or urine testing shows blood alcohol concentration (BAC) of 0.08 percent or higher, state law presumes the person to be intoxicated. Even without BAC evidence, though, police and others can testify about their observations of a defendant’s appearance, odor, and behavior, to establish intoxication.

The Fourth Amendment requires police to obtain search warrants based on probable cause. Courts have identified numerous exceptions that allow police to enter private property and conduct searches without a warrant. They must be able to convince a judge that the search fits within an identified exception. The Fifth Amendment guarantees the right against self-incrimination. Police cannot coerce a person to confess to a crime, and prosecutors cannot compel a person to implicate themselves. A defendant can challenge the constitutionality of a search or arrest by filing a motion to suppress evidence. If a judge finds a violation of constitutional rights, any evidence obtained as a result is suppressed, meaning prosecutors cannot use it at trial.

January 24, 2020

New Jersey Supreme Court Appoints Four-Judge Panel to Review DWI Convictions Involving Faulty Alcotest Reports

by Evan M. Levow

The device used for breath testing by New Jersey police in investigations of suspected driving while intoxicated (DWI), known as the Alcotest, has come under significant scrutiny several times in recent years. In order to ensure the accuracy of the results produced by the device, police must perform regular maintenance and calibration. Our New Jersey DWI lawyers were involved in a case before the New Jersey Supreme Court in 2008 that produced a set of procedures police must follow for Alcotest results to be admissible in court, including standards for device maintenance and calibration. Starting in 2016, allegations of misconduct by a police sergeant in charge of maintaining Alcotest devices in five counties called over 20,000 DWI cases into question. In July 2019, the New Jersey Supreme Court announced that a four-judge panel would review those cases, and could grant post-conviction relief (PCR) when appropriate.

New Jersey’s DWI statute allows prosecutors to prove that a defendant was impaired with evidence of blood alcohol content (BAC). A BAC of 0.08 percent or higher creates a presumption of intoxication. Police throughout the state use the Alcotest to perform breath tests on DWI suspects. In State v. Chun, the state supreme court addressed concerns about the Alcotest’s accuracy and reliability. Its 2008 decision in that case requires police to follow specific calibration procedures, and to document routine performance of those procedures. Prosecutors seeking to prove DWI with BAC evidence must produce the most recent maintenance report predating the use of a device by a defendant.

A 2016 indictment against a former sergeant with the New Jersey State Police accused him of filing false Alcotest maintenance reports for devices in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. An investigation found that 20,667 DWI cases from 2008 to 2016 relied on devices with potentially false documentation. The state supreme court appointed a special master to review the matter. The special master issued an order in November 2017 staying all cases involving potentially-affected Alcotest machines. Her investigation found that the falsified records called a substantial number of DWI cases into question. The state supreme court affirmed this report in a November 2018 ruling.

December 20, 2019

New Jersey Court Rules on Objection to Field Sobriety Tests in DWI Case

by Evan M. Levow

Police in New Jersey often ask individuals suspected of driving while intoxicated (DWI) to perform field sobriety tests (FSTs), which allow officers to look for supposed signs of intoxication. Of the three standard FSTs used by New Jersey law enforcement, two are based entirely on the ability to maintain balance. Various injuries and medical conditions can also affect performance on these tests. It is possible for a defendant charged with DWI to produce evidence about an injury or illness to challenge an officer’s testimony about FST performance, although this is usually not the only evidence of intoxication the state will offer. In early 2019, the New Jersey Superior Court, Appellate Division ruled on a New Jersey DWI case with this kind of challenge.

The DWI statute requires proof that a defendant was either “under the influence” of alcohol or drugs or had a blood alcohol concentration (BAC) of 0.8 percent or higher. Prosecutors often introduce evidence of both, for good measure. If a person refuses or is unable to submit a breath sample for BAC testing, prosecutors must rely on evidence that a person was “under the influence.” A 1975 decision by the New Jersey Supreme Court established that this term means “a substantial deterioration or diminution of the mental faculties or physical capabilities of a person” caused by alcohol or another drug.

In 2006, the state supreme court ruled that expert testimony, such as by a physician or other medical professional, is not necessary to demonstrate the “influence” of alcohol or drugs. Testimony from police officers who witnessed a defendant’s behavior and appearance can, by itself, sustain a conviction for DWI. This might include testimony about slurred speech or bloodshot eyes, the odor of alcohol, or swaying or stumbling during the FSTs. A defendant with a health condition that could impact their FST performance, on the other hand, usually must present expert testimony.

November 19, 2019

The “Plain Smell Doctrine” in New Jersey DWI Cases

by Evan M. Levow

In order to prove guilt in a case of alleged driving while intoxicated (DWI) in New Jersey, the state must be able to justify all of the police’s actions leading to the DWI charges. This includes the officer’s decision to stop the defendant’s vehicle, the basis for conducting an investigation, and the decision to place the defendant under arrest. The Fourth Amendment to the U.S. Constitution generally prohibits warrantless searches and seizures, although numerous exceptions apply. Courts have held that evidence in a police officer’s “plain view” may justify a warrantless search. Similarly, odors that are within an officer’s “plain smell,” such as the smell of alcohol emanating from a vehicle, may serve as a basis for suspecting a driver of DWI.

The “plain view doctrine” holds that police may conduct a limited search without a warrant if contraband or other evidence of unlawful activity is plainly visible to them. For example, if an officer pulls a car over for speeding, and they can see a bag of drugs sitting in the passenger seat, they may be able to search part or all of the vehicle without a warrant. The “plain smell doctrine” gives police a limited right to conduct a warrantless search based on odors that suggest illegal conduct. This often involves the odor of alcohol or marijuana. A 2018 ruling by the New Jersey Appellate Division held that merely smelling something is not a “search” within the meaning of the Fourth Amendment. “[A]n officer standing outside of an automobile who smells the odor of marijuana emanating from within it” the court held, “has not conducted a ‘search.’”

An officer’s testimony about smell might not be enough, by itself, to justify an investigation or arrest. Police rarely stop a vehicle because of an alleged odor of alcohol, if only because smelling a moving vehicle is exceedingly difficult. Police must be able to justify the traffic stop before odor-related evidence is even a factor. In a 2019 ruling, the Appellate Division considered a defendant’s challenge to the arresting officer’s request to conduct field sobriety tests. The court recounted the officer’s testimony about the defendant’s driving, which reportedly included weaving and a “California stop,” provided reasonable suspicion for the stop. At that point, the defendant’s appearance, along with the smell of alcohol, provided probable cause for a DWI investigation.

October 16, 2019

How New Jersey Police Use Field Sobriety Tests in DWI Investigations

by Evan M. Levow

Police in New Jersey have many ways to build a case for driving while intoxicated (DWI). They can establish probable cause for an arrest by instructing a suspect to perform field sobriety tests (FSTs). A “perfect” performance on FSTs is essentially impossible and is unlikely to help someone avoid arrest regardless. Defending against New Jersey DWI charges that include alleged failed FSTs means challenging whether police officers correctly administered the tests. A Pennsylvania town recently sought volunteers for an unusual form of police training. New Jersey police have not yet asked for volunteers to get drunk so officers can practice administering FSTs, but the outcome of the Pennsylvania training may change that.

State law allows prosecutors to make a case with evidence of impairment besides blood alcohol content (BAC). The DWI statute defines the offense, in part, as driving a motor vehicle “while under the influence” of alcohol or drugs. Eyewitness testimony from officers, including FST performance, is often the main evidence presented by the state.

The National Highway Traffic Safety Administration (NHTSA) has established a set of standardized FSTs that most states have adopted. The set of standardized FSTs consists of three tests:
1. One-Leg Stand: The suspect must raise one foot about six inches off the ground and hold it there.
2. Walk and Turn: The suspect must walk a straight line, keeping their heel to their toe with each step, for a total of nine steps. Then, they must turn 180 degrees and repeat the process until they return to the starting point.
3. Horizontal Gaze Nystagmus: The officer holds a pen or other object at a constant distance from the suspect’s face while moving it from side to side. The suspect must follow the object with their eyes without moving their head. The officer is looking for involuntary eye movement, known as nystagmus, supposedly associated with intoxication.

September 16, 2019

Possible Legalization of Marijuana in New Jersey Raises Questions About Evidence in DUID Cases

by Evan M. Levow

New Jersey has developed an extensive body of law addressing the investigation and prosecution of suspected driving while intoxicated (DWI), at least when the substance in question is alcohol. Testing the amount of alcohol present in a person’s system, known as blood alcohol concentration (BAC), is a highly imperfect process, which is prone to constant errors. Despite its many flaws, it is still a better system than anything available for determining whether a driver was impaired by other drugs. Currently, New Jersey prosecutors pursuing alleged driving under the influence of drugs (DUID) must rely on (1) chemical tests with no specific threshold amount to determine impairment, and (2) the testimony of police officers purportedly trained to identify outward signs of intoxication by various drugs. As legislators continue to consider the New Jersey Cannabis Regulatory and Expungement Aid Modernization Act (NJCREAMA), questions will continue to abound about how to enforce DUID laws involving marijuana, and how to defend people charged with that alleged offense. If you have been charged with a DWI, it is important that you speak with a New Jersey DWI attorney as soon as possible.

In cases involving alcohol, New Jersey’s “legal limit” of 0.08 percent BAC creates a presumption of impairment. This is often known as per se DWI. New Jersey law has no specific threshold amount for marijuana or any other drug in DUID cases. Police can seek a warrant to test samples of blood or urine, but that only indicates whether or not a suspect had a particular drug in their system at the time the sample was taken. Prosecutors usually must produce other evidence to establish impairment. This often involves testimony by police officers who receive specialized training as “drug recognition experts” (DREs).

In cases involving alleged marijuana impairment, chemical testing evidence and DRE testimony may conflict with one another. Marijuana can show up in blood or urine tests long after its effects have worn off. Several recent New Jersey cases have relied on chemical tests allegedly showing the presence of marijuana in a driver’s system, despite testimony from eyewitnesses, including police officers, who did not notice any signs of impairment.