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In prosecutions for alleged driving while intoxicated (DWI) in New Jersey, the state must prove each element of the offense beyond a reasonable doubt. Municipal court judges determine whether prosecutors have met their burden of proof when a case goes to trial. Last year, the New Jersey Appellate Division considered a defendant’s claim that a police officer’s failure to record video of her field sobriety tests (FSTs) should weigh in her favor. The court’s ruling in State v. Belko is a reminder that New Jersey gives prosecutors rather wide latitude in the types of evidence they may use in DWI cases.

The New Jersey DWI statute allows prosecutors to prove impairment by demonstrating that a defendant had blood alcohol content (BAC) of at least 0.08 percent, or by showing other evidence that they were “under the influence” of alcohol, narcotics, or other drugs. This could include a defendant’s performance on FSTs, their appearance or demeanor, or testimony from an officer trained in drug recognition.

Municipal judges must weight the credibility of eyewitness and expert testimony in DWI trials. This often requires subjective determinations of how a witness appears in court. As video recording becomes increasingly common, thanks in part to near-ubiquitous smartphones, more and more arrests and other incidents are recorded by one or more people. These videos sometimes serve to challenge the official story from one (or both) sides. Video evidence is often admissible in court, but the Belko case addressed the question of whether video evidence should be required.
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Prosecutors in New Jersey must prove every element of the offense of driving while intoxicated (DWI) beyond a reasonable doubt. In cases that rely on breath testing to establish blood alcohol content (BAC), this includes evidence that the equipment used by police met the requirements of state law. Our firm was involved in a landmark 2008 ruling by the New Jersey Supreme Court, State v. Chun, which established procedures for maintaining and calibrating the breath-testing device used by most New Jersey police departments. The court’s decision also identified a set of “foundational documents” that prosecutors must produce to establish that police have followed these procedures. In September 2018, the New Jersey Appellate Division ruled in State v. Ogden on a challenge to the foundational documents offered by the state in a DWI case.

Under the New Jersey DWI statute, BAC of 0.08 percent or above creates a presumption of impairment. State law therefore requires drivers suspected of DWI to submit a breath sample for testing by police. Most police departments around the state use a device commonly known as the Alcotest to test breath samples. These devices have been controversial because of concerns over the training of the officers administering the tests, and the accuracy of the test results. The New Jersey Supreme Court ruled in Chun that Alcotest results are admissible in court, provided that the state meets strict requirements for the maintenance of the devices and the conditions in which breath tests may be performed.

In addition to offering evidence that police followed the testing procedures established by Chun, such as a twenty-minute waiting period before a DWI suspect may submit a breath sample, police must establish that the Alcotest device had been properly calibrated and was in good working order when the defendant was tested. The court identified three “foundational documents” in Chun that prosecutors must produce:
1. The most recent calibration report for the device from before the date of the defendant’s test, which must include information on the credentials of the individual who did the calibration;
2. The most recent “new standard solution report”; and
3. The “certificate of analysis of the 0.10 simulator solution used in a defendant’s control tests.”
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Prosecutors in New Jersey may offer two types of evidence to prove guilt in driving while intoxicated (DWI) cases. First, they may introduce testimony from police officers and others who witnessed a defendant’s appearance and demeanor. This may include testimony about field sobriety tests, or testimony from officers trained as drug recognition experts. The second method allowed by the New Jersey DWI statute is evidence of blood alcohol content (BAC) of at least 0.08 percent. Most police departments in New Jersey use a device known as the Alcotest to collect breath samples and test them to determine a DWI suspect’s BAC. A landmark 2008 decision by the New Jersey Supreme Court, State v. Chun, established standards for the use of these devices in order to maximize their accuracy. One rule created by the Chun decision requires women who are over sixty years of age to provide a smaller breath sample than other people, based on findings that women at that age are generally unable to provide as much breath as their male peers. A 2013 follow-up order in the Chun case limited the state’s ability to prosecute women over the age of sixty for refusal to submit a breath sample.

New Jersey’s implied consent statute requires drivers to submit to breath testing in DWI investigations. Refusal to do so is a separate motor vehicle offense, punishable by fines and driver’s license suspension. The Alcotest requires an individual to blow into a tube connected to the device for a sustained period of time, in order to provide the 1.5 liters of air needed for the test. The individual must seal their lips around the tube so that no air escapes while they are blowing. New Jersey courts have held that an individual may be found guilty of refusal for repeatedly failing to provide an adequate breath sample, such as by failing to seal their lips around the tube or failing to blow for long enough.

Prior to the 2008 ruling in Chun, a court-appointed special master issued a report that recommended various standard procedures for administering the Alcotest. This included the 1.5-liter minimum volume of air. The special master also noted that the evidence supported a lower required volume for women older than sixty. The court reviewed research showing that, after age sixty, women’s average volume of breath was 1.4 liters. This average volume decreased by 0.1 liter every ten years afterwards. The court accepted these findings and ruled that women over the age of sixty must only provide 1.2 liters of air. It also dismissed possible objections to the two standards under the Equal Protection Clause.
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Most New Jersey police departments use a device known as the Alcotest to measure blood alcohol content (BAC) in breath samples submitted by individuals suspected of driving while intoxicated (DWI). Under New Jersey DWI law, a person with BAC of at least 0.08 percent is presumed to be legally impaired. In 2008, we were involved in a case before the New Jersey Supreme Court, State v. Chun, that established statewide procedures for calibrating and maintaining Alcotest devices and administering breath tests. In 2016, a sergeant with the New Jersey State Police was charged with allegedly falsifying Alcotest calibration records. The New Jersey Supreme Court has now effectively tossed out Alcotest results in thousands of cases involving machines under that sergeant’s supervision. The court’s decision in State v. Cassidy, issued on November 13, 2018, is likely to have a substantial impact for months to come.

The Alcotest 7110 MKIII-C requires careful calibration to ensure reliable results. The Chun ruling held that Alcotest results are admissible to establish BAC in DWI cases. It also held, however, that police must follow specific procedures to maintain and calibrate the devices, and that prosecutors must make documentation available about the maintenance and calibration of the device used in each case.

The “0.10 simulator solution” used in Alcotest control tests must be maintained within a specific temperature range. Chun requires measurement of this temperature with a thermometer that is traceable to standards established by the National Institute of Standards and Technology (NIST). A “Calibration Report” and “Certificate of Analysis of the 0.10 Simulator Solution” are among the “foundational documents” required by Chun to establish an Alcotest device’s accuracy.
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A conviction for driving while intoxicated (DWI) in New Jersey carries multiple penalties, including driver’s license suspension, a fine, and possible jail time. The severity of the penalties depends on the number of prior convictions or, in the case of a first offense, the defendant’s blood alcohol concentration (BAC). The penalties for DWI and refusal to submit to breath testing can also include mandatory installation of an ignition interlock device (IID) after reinstatement of a defendant’s driver’s license. Two bills currently pending in the New Jersey Assembly would expand the use of IIDs in DWI and refusal cases. One bill would reduce the period of license suspension for DWI offenses with the use of an IID. The other bill would require IID installation while a DWI or refusal sentence has been stayed pending appeal. If you have questions about the latest laws that relate to charges you might face, reach out to a New Jersey DWI attorney.

An IID is a device attached to a vehicle’s ignition mechanism. The device tests a sample of the driver’s breath to determine BAC, and prevents the vehicle from starting if BAC is above a certain level. Under current state law, municipal court judges have the discretion to order a defendant convicted of a first DWI offense to install an IID at the end of the mandatory license suspension period, provided that the defendant’s BAC was less than 0.15 percent. If BAC was 0.15 percent or higher, IID use is mandatory. For any first-time refusal conviction, IID installation is also currently mandatory. For either offense, the period of court-ordered IID use may be anywhere between six months and one year. Defendants must bear the cost of installing and maintaining an IID.

A bipartisan group of New Jersey legislators introduced A2089 in the Assembly in January 2018. The Assembly Judiciary Committee approved the bill in late November, and referred it to the Appropriations Committee. A companion bill, S824, received a favorable committee report in September. The bill would amend the DWI and refusal statutes, changing the provisions for license suspension and requiring IID installation in some cases.
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Police departments throughout New Jersey use a device known as the Alcotest to test breath samples in cases of suspected driving while intoxicated (DWI). New Jersey prosecutors charged a former State Police sergeant with multiple offenses in 2016, alleging that he failed to perform maintenance on Alcotest devices under his supervision, as required by state law, and then filed fraudulent reports stating that this maintenance was performed. The New Jersey Supreme Court recently ruled in State v. Cassidy that as many as 20,000 DWI defendants may challenge their charges or convictions. At the federal level, the Third Circuit Court of Appeals reviewed claims that the former sergeant’s alleged acts violated DWI defendants’ civil rights in Ortiz v. N.J. State Police.

The Alcotest device tests breath samples to determine blood alcohol content (BAC). Under the New Jersey DWI statute, BAC of 0.08 or higher establishes a presumption that the person was legally impaired by alcohol. In 2008, we participated in a landmark proceeding before the New Jersey Supreme Court that challenged the the accuracy of the Alcotest device and the admissibility of its results. While the court’s ruling in State v. Chun affirmed the use of the Alcotest device, it established strict procedures for maintaining and calibrating the device, and for providing documentation to DWI defendants indicating that police departments have followed these procedures.

After the former sergeant was arrested and charged, the New Jersey Supreme Court appointed a special master to determine whether the alleged failure to properly calibrate and maintain Alcotest devices in multiple counties affected the reliability of the evidence produced by those devices. The special master issued a report in March 2018 concluding that the failure to use a particular type of thermometer during calibration, as required by Chun, rendered the results of more than 20,000 tests scientifically unreliable. The state supreme court adopted the special master’s report in November 2018, effectively tossing out the state’s BAC evidence in over 20,000 DWI cases.
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The legal status of cannabis, including marijuana and related products, is undergoing major changes throughout the country. More than half of all U.S. states, including New Jersey, allow the possession and use of marijuana to some extent for medical purposes under a doctor’s supervision. A handful of states have enacted laws decriminalizing the possession of small amounts for recreational use. This may involve the substitution of civil penalties for criminal ones, or the removal of all legal penalties. A bill pending in the New Jersey Legislature, the New Jersey Cannabis Regulatory and Expungement Aid Modernization Act (NJCREAMA) would remove all criminal penalties for the purchase and possession of up to one ounce of cannabis. Several provisions of the bill directly address investigations and prosecutions under New Jersey’s driving while intoxicated (DWI) law.

The New Jersey DWI statute defines the offense, in part, as driving “while under the influence of intoxicating liquor, narcotic,…or habit-producing drug.” For alcohol, the statute establishes a blood alcohol concentration (BAC) of 0.08 percent as the per se standard of impairment. State law also requires DWI suspects to submit a breath sample for BAC testing. New Jersey has no per se standard for marijuana impairment in DWI cases. Prosecutors must instead rely on circumstantial evidence and testimony from police officers trained as “drug recognition experts.” A bill introduced in February 2018, A2776, would establish a per se standard of two nanograms per milliliter, based on blood tests, but it is still awaiting a committee assignment.

Legislators first introduced NJCREAMA in the Senate in June 2018 as S2703. The Senate Budget and Appropriations Committee reported favorably on an amended version of the bill on November 26, 2018. A companion bill, A4497, was introduced in the Assembly and received a favorable report from the Assembly Appropriations Committee on the same day. This means that both committees recommend passage of the bill. In addition to legalizing small amounts of marijuana for medical use, the bill would create a new Cannabis Regulatory Commission (CRC) “to regulate personal use and medical cannabis.” It also provides for the expungement of records in certain prior marijuana cases.
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The holiday season means many great things for people in New Jersey, such as family, friends, and celebration. Since the “celebration” part of the holidays can sometimes lead to excess, police tend to step up efforts to enforce New Jersey driving while intoxicated (DWI) laws on roads during the holidays. This may include the use of roadside sobriety checkpoints. New Jersey police are allowed to stop drivers at temporary checkpoint locations to inquire about alcohol consumption and look for signs of intoxication. The ability of police to do this is strictly limited, however, by the Fourth Amendment’s prohibition on unreasonable searches and seizures. New Jersey drivers should know their rights during sobriety checkpoint stops.

The New Jersey DWI statute defines the offense primarily as operating a motor vehicle “while under the influence” of alcohol or drugs, or with blood alcohol concentration (BAC) of 0.08 percent or more. The state may prove this by offering evidence of a defendant’s BAC obtained from a breath sample, which all drivers in New Jersey are required to provide under law, or through other evidence indicating that a defendant was impaired at the time they were operating a vehicle. Many DWI cases begin with a traffic stop based on a police officer’s suspicion that the driver is intoxicated. The Fourth Amendment requires that this be a “reasonable suspicion,” meaning that police officers cannot pull a driver over without some clear basis for suspecting DWI. To make an arrest, police must have “probable cause” to believe an offense has occurred.

Sobriety checkpoints, which allow police to stop some or all vehicles on a particular stretch of road, clearly do not involve “reasonable suspicion,” but the U.S. Supreme Court has affirmed their constitutionality. In 1990, the court held in Michigan Department of State Police v. Sitz that preventing DWI was a “substantial government interest,” that sobriety checkpoints “reasonably…advance that interest,” and that “the degree of intrusion upon individual motorists” is minimal. The New Jersey Appellate Division held that a sobriety checkpoint was constitutional in 1985 in State v. Kirk, and in 1989 in State v. Mazurek. The New Jersey Supreme Court reached a similar ruling in 2002’s State v. Carty.
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Prosecutors in New Jersey DWI cases have the burden of proving every element of driving while intoxicated (DWI) beyond a reasonable doubt. They must also ensure that the proceedings accord with a defendant’s due process rights. This includes a defendant’s right to understand the charges brought against them and the likely penalties that could result from a guilty verdict. New Jersey, along with many other states, has an implied consent statute that effectively requires drivers to submit to breath testing when ordered to do so by a police officer. A separate code section makes it a motor vehicle offense, punishable by a fine and driver’s license suspension, to refuse to submit to breath testing. The New Jersey Appellate Division recently ruled in two cases that alleged due process violations because of summonses that cited the wrong code section. In both cases, State v. Dito and State v. Horton, the summonses cited the implied consent statute, rather than the section making refusal an offense.The Fourteenth Amendment to the U.S. Constitution prohibits states from depriving persons of “life, liberty, or property, without due process of law.” One aspect of this requirement involves “fair notice” of potential criminal penalties for specific conduct. The U.S. Supreme Court has found statutes to be unconstitutional for failing to provide fair notice. In a 1964 decision, Bouie v. City of Columbia, the court held that a trespass statute did not clearly define the offense, such that the defendants knew that their conduct was illegal.

The defendants in Dito and Horton argued that New Jersey’s implied consent and refusal statutes present a similar question. The implied consent law, found in § 39:4-50.2 of the New Jersey Revised Statutes, states that anyone operating a vehicle on a public roadway in New Jersey “shall be deemed to have given his consent to the taking of samples of his breath” in DWI investigations. It does not, however, prescribe any penalty for refusing to provide a breath sample. The provisions for penalties are found in § 39:4-50.4a, which mandates driver’s license revocation and a fine.

The question presented in Dito and Horton was whether a summons for refusal that cites § 39:4-50.2 instead of § 39:4-50.4a constitutes “fair notice.” The defendant in Dito moved to dismiss the refusal charge in municipal court on this ground. The Law Division granted the motion, holding that “that the error was fatal because it failed to inform defendant of the nature of the charge against him.”

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Prosecutions for driving while intoxicated (DWI) in New Jersey often begin with a traffic stop. A police officer might pull a driver over based on a specific suspicion of DWI, or they might pull them over for another reason and then notice signs of possible impairment by drugs or alcohol. In either case, police must have “reasonable suspicion” of unlawful activity before initiating a traffic stop. The “reasonable suspicion” requirement is an exception to the Fourth Amendment’s warrant requirement. New Jersey prosecutors recently tried to justify a traffic stop that led to a DWI case under the “community caretaker” doctrine, another exception to the warrant requirement, in State v. Sutherland. The New Jersey Supreme Court had previously rejected prosecutors’ reasonable suspicion argument. On remand, the Appellate Division rejected the community caretaker argument as well. This can be a complex area of law, so it may be worthwhile to reach out to a New Jersey DWI lawyer if you have questions.

Under New Jersey law, it is a traffic offense to drive “while under the influence” of drugs or alcohol. The state can prove that a defendant was legally impaired through various means, including eyewitness testimony by the arresting officers, other officers, and “drug recognition experts.” Prosecutors can also introduce evidence of blood alcohol content (BAC) at or above the “legal limit” of 0.08 percent. Defending against a DWI charge often involves challenging the state’s evidence of impairment, but it may also be possible to challenge the justification for the traffic stop itself.

Brief detentions of individuals by police, based on reasonable suspicion of unlawful activity, are often known as “Terry stops,” after the 1968 U.S. Supreme Court decision Terry v. Ohio. Five years later, the court decided Cady v. Dombrowski, which held that police do not violate the Fourth Amendment when they find evidence of criminal activity while engaging in certain “community caretaking functions.” This refers to police activities that have no relation to “the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”
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