1. What are the penalties for driving without insurance?

New Jersey law requires all drivers to have insurance on their motor vehicles. A driver must have insurance coverage of $15,000 for the injury or death of a person; $30,000 for the injury or death of more than one person; and $5,000 for property damage. The penalties for driving without insurance are hard core. For a first time offense, the fines are $300 to $1000, and a loss of your license for 1 year. Additionally, you will have to pay surcharges for three years in the amount of $250 per year.

The penalties for a second time driving without insurance are even worse. The fines are up to $5,000, there is a 2 years license suspension, and there is a 14-day, mandatory jail term, and an additional mandatory 30 days of community service. The penalties for driving without insurance are very strict and they cause excessive hardship for many drivers. Therefore, the sentencing exposure makes driving without insurance one of the harshest traffic laws in New Jersey. A driver charged with driving without insurance faces even more penalties than a DWI charge. A person conviction of driving without insurance faces a 1 year loss of his driver’s license. Meanwhile, person who is convicted of a first time DWI typically only loses his driver’s license for only 3 to 7 months.

2. What does the no driving without insurance statute specify?

N.J.S.A. 39:6B-1 (Maintenance of motor vehicle liability insurance coverage) provides:

1. a. Every owner or registered owner of a motor vehicle registered or principally garaged in this State shall maintain motor vehicle liability insurance coverage, under provisions approved by the Commissioner of Banking and Insurance, insuring against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the ownership, maintenance, operation or use of a motor vehicle wherein such coverage shall be at least in: (1) an amount or limit of $15,000.00, exclusive of interest and costs, on account of injury to, or death of, one person, in anyone accident; and (2) an amount or limit, subject to such limit for any one person so injured or killed, of $30,000, exclusive of interest and costs, on account of injury to or death of, more than one person, in anyone accident; and (3) an amount or limit of $5,000, exclusive of interest and costs, for damage to property in anyone accident.

b. Notwithstanding the provisions of subsection a. of this section, an owner or registered owner of an automobile, as defined in section 2 of P.L. 1972, c.70 (C.39:6A-2), registered or primarily garaged in the State may satisfy the requirements of subsection a. of this section by maintaining a basic automobile insurance policy containing coverages provided pursuant to subsections a. and b. of section 4 of P.L.1998, c.21 (C.39:6A-3.1).

c. Notwithstanding the provisions of subsection a. of this section, an owner or registered owner of an automobile, as defined in section 2 of P.L.1972, c.70 (C.39:6A-2), registered or primarily garaged in the State may satisfy the requirements of subsection a. of this section by maintaining a special automobile insurance policy containing coverages provided pursuant to subsection b. of section 45 of P.L.2003, c.89 (C.39:6A-3.3).

3. What are the legal burdens in a driving without case?

A defendant who is charged with driving without insurance must  produce at the Municipal Court an insurance card that provides coverage on the date when the summons was issued. If the defendant can’t produce the requisite insurance card, then this failure creates a rebuttable presumption that he was uninsured when he was charged with this offense.

The key elements that the prosecutor must prove under the driving without insurance statute are as follows:

a. The driver is owner of the vehicle and/or;

b. The driver knew or should have known that the vehicle was uninsured; and

c. The vehicle must also be principally garaged and registered in  New Jersey.

4. What is the most important driving without insurance case?

The most important driving without insurance case is State v. Hochman, 188  N.J. Super. 382 (App. Div. 1982). Here, the Appellate Division reviewed and ultimately reversed a conviction for driving without  insurance. The court held that the prosecutor failed to prove the state’s burden of proving that the driver’s insurance was lawfully canceled. This case was a very fact specific one. Here, the defendant was charged with driving a car that he owned without insurance. At the trial it was stipulated that because of long hours defendant worked, he asked his wife to take care of paying the household bills. Therefore, the defendant gave his wife several thousand dollars each month to pay for the car insurance and for the other household bills. Mr. Hochman’s wife made the arrangements through an insurance broker to have Allstate insure the vehicle. Thereafter, the insurance broker then arranged to finance the insurance premiums through a “Lee Finance” financial service. The defendant’s wife then paid the broker and she agreed to pay the balance to the financial service in monthly installments of $48.

The key issue in the Hochman case was whether All State sent out the proper cancellation notices to the driver. Allstate claimed it mailed a cancellation notice to Mr. Hochman. However, it was stipulated at the trial that All State mailed the cancellation notice to an incorrect address of 313 Park Street rather than 314 Park Street. The Appellate Division held that in order to convict a defendant of driving without insurance the prosecutor did not have to prove a culpable mental state. The culpable mental state is that defendant knew his vehicle was uninsured. Instead, the court held that the prosecutor simply had the burden of proving beyond a reasonable doubt that (1) defendant owned the vehicle, (2) the vehicle was registered in New Jersey, (3)  defendant operated the vehicle or caused it to be operated upon any public road or highway in this State, and (4) the vehicle was without liability insurance coverage required by N.J.S.A. 39:6B-1.

The Hochman court further held that the first three elements of the offenses were proven beyond a reasonable doubt. However, the pivotal issue was whether the state proved beyond a reasonable doubt the fourth element of the defense, that the vehicle was uninsured. Thus, the legal question was whether driving without insurance is a strict liability offense. Moreover, the issue was whether the defendant’s insurance policy had been lawfully and effectively canceled. Finally, the Hochman court further held that Allstate had not properly canceled the insurance policy. Thus the Hochman court held;

A notice of cancellation of a automobile insurance policy is effective in this State only if it is based on one or more statutorily enumerated reasons, including the  nonpayment of premiums. N.J.S.A. 17:29C-7(A)(a). Moreover, prior to March  10, 1981, where, as here, the cancellation was for nonpayment of premiums, the notice of cancellation must have been mailed or delivered by the insurance carrier (here Allstate) to the insured (here either defendant or his wife) at least ten days prior to the effective date of cancellation and must have been accompanied by a statement of the reason given for such cancellation.  N.J.S.A. 17:29C-8. Weathers v. Hartford Ins. Group, 77 N.J. 228, 234 (1978). Proof of the mailing the notice, however, is not conclusive on the issue. The insured may still offer proof that he never received the notice “for the purpose of refuting the hypothesis of mailing.”

The Hochman court also held that although Allstate claimed that a notice of cancellation was sent to the defendant’s wife, this did not establish that the notice satisfied the statutory requirement of N.J.S.A. 17:29C-8. There is no proof that the notice mailed to the named insured (assuming that defendant’s wife was the insured named in the policy) or that it was mailed to the address shown in the policy, or that its contents complied with statutory requirements.

The court opined “thus, we are constrained to hold that the state failed to sustain its burden of proving beyond a reasonable doubt that the Allstate automobile liability insurance policy covering defendant’s vehicle was lawfully canceled. The Allstate policy therefore was presumptively in full force and effect ………. and defendant’s conviction for violating the compulsory insurance provisions of N.J.S.A. 39:6B-2 cannot stand.”

The Hochman defense does not always work in the Municipal Courts. An experienced Municipal Court lawyer can help you evaluate whether you can successful raise a viable defense based on the Hochman case. Some Municipal Courts are very sympathetic to drivers who are busted for driving without insurance and they will help defense counsel fashion a plea deal to avoid a long suspension. Meanwhile, some Municipal Courts are hard core and they “throw the book” at drivers who are busted for driving without insurance. Nonetheless, if you lose then you can always appeal. However, appealing a case costs money and you will also have to pay for filing fees and the for the transcripts. Fighting a no insurance case is very similar to playing the lottery or going to AC. You have a chance to win if the case breaks your way. However, there are no guarantees and you will have to hire a good lawyer and spend some money to give yourself a fighting chance to win.

5. What are some other types of defenses that can be used in a driving without insurance case?

An overlooked defense is that the driver did not operate the vehicle. Proving operation is different in no-insurance cases than in a DWI case. A defendant who is seated in the driver’s seat, behind the steering wheel of a vehicle that is under tow and was in physical control of the vehicle did not “operate” the vehicle for the purposes of prohibiting operating the vehicle while suspended, operating uninsured vehicle and operating unregistered vehicle, where the vehicle did not have an engine and incapable of being operated under its own power. A savvy lawyer can try to advocate that the prosecutor can’t prove that the defendant drove the vehicle. State v. Derby, 256 N.J. Super. 702, (Law Div. 1992).

6. What are the important cases that can be used to argue that the insurance company properly canceled the policy?

A. See, Hodges v. Pennsylvania National Insurance Company, 260 N.J. Super. 217, 222-23 (App. Div. 1992). In a case involving Personal Injury Protection/ No Fault PIP benefits the Appellate Division ruled that an insurance company did not properly mail a notice of cancellation, thus the policy was not canceled.

B. Lopez v. New Jersey Automobile Full Underwriting Association, 239 N.J. Super. 13, 20 (App. Div.), certif. den. 122 N.J. 131 (1990). In order to be effective, the notice of cancellation “must be sent in strict compliance with the provisions of N.J.S.A. 17:29C-10.” (absence of proof of personal knowledge of mailing by postal employee or insurer employee renders notice ineffective). The court questioned whether the stamped proof of payment of money in postage was proof of mailing. The Appellate Division in Hodges noted that our courts have interpreted the statute to require a precise proof of mailing, usually the official “U.S. Postal Service Certificate of Mailing.”

C. Lumbermen’s Mutual Casualty Co. v. Carriere, 170 N.J. Super. 437, 450 (Law Div. 1979). If a husband and wife, or both, are named in the policy, supports the proposition that both husband and wife named in the policy should receive notice.

7. What other type of defenses can be used against a driving without insurance charge if the driver does not own the vehicle?

The charge of driving without insurance is much easier to defend if the driver does not own the vehicle. There are strict liability laws for a driver who only operates an uninsured vehicle. The prosecutor must prove that the driver knew or should have known from the totality of  circumstances that the vehicle did not have insurance. These facts can be established by analyzing the relationship between the parties, whether or not the vehicle had a valid inspection sticker, and testimony by the owner who often is also issued an uninsured motorist charge.

An illustrative case is Matlad v. U.S. Services, 174 N.J. Super. 499 (App. Div. 1980). Here, the husband canceled policy without telling his wife. The court held that the cancellation was void as against public policy and thus coverage continued for wife. Additionally, the defendant/owner must operate or cause the car to be operated. If a driver took the car without permission that day, the owner did not cause the vehicle to be operated.

As a side note the prosecutor is still legally required to provide discovery. In some rare cases a no insurance case can be dismissed if the prosecutor fails to provide discovery. When there is no accident and if there are a sympathetic circumstances, then a reasonable prosecutor many times will offer a plea bargain so a driver will not lose his driver’s license for a one year. Many times the prosecutor will offer the driver to plead guilty to failure to produce an insurance document, and only require the driver to lose his license for 30 days. In many cases the driver will not have to lose his license at all. Nonetheless, the prosecutors and the courts should try to be reasonable with the public, and not to overly punish drivers who drive without insurance. A defendant will often lose his job if he is convicted for driving without insurance. Moreover, as a side note the severe sentencing of driving without insurance should be softened somewhat if the State would pass a limited “drive to work” license.

8. What are the legal requirements for an insurance company to cancel a policy?

There are many notices that an insurance company must issue before it can legally cancel a driver’s insurance policy. These requirements are codified in the law N.J.S.A. 17:29C-8 and it provides as follows;

N.J.S.A. 17:29C-8. Time for notice

No notice of cancellation of a policy to which section 2 applies shall be effective unless mailed or delivered by the insurer to the named insured at least 20 days prior to the effective date of cancellation; provided, however, that where cancellation is for non-payment of premium at least 15 days’ notice of cancellation accompanied by the reason therefor shall be given. Unless the reason accompanies or is included in the notice of cancellation, the notice of cancellation shall state or be accompanied by a statement that upon written request of the named insured, mailed or delivered to the insurer not less than 15 days prior to the effective date of cancellation, the insurer will specify the reason for such cancellation.

This section shall not apply to non-renewal.

9. What is the best defense to driving without insurance?

The best defense that is available is that your insurance policy was canceled without your knowledge. Many no insurance cases have been dismissed wherein one spouse failed to pay the insurance premium(s) for her partner. A typical fact pattern is that the husband gave his wife money to pay the auto insurance bill. However, for a myriad of reasons the bill was never paid by the wife. Either the wife forgot to pay the bill, or the couple was fighting and the wife blew off this task. Thereafter, the husband can argue that he gave the responsibility to pay the insurance bill to his wife and that it is not his fault that the insurance policy was canceled or not renewed.

Another strong defense may be available if the insurance company failed to properly notify you that the policy was canceled. If an insurance company fails to properly notify the insured that the policy was canceled then it the insurance policy may still be legally in effect. Thus, a person who was charged for driving without insurance may actually in fact been driving with insurance. Another common scenarios is when a person pays his insurance bill by an automatic debit from his checking account. In this type of scenario, the defendant can argue that he earnestly believed that his monthly insurance bill was automatically debited from his account. Moreover, he can contend that he had no reason to believe that his insurance bill was not paid.

If the vehicle that was operated by a person who did not own it then your attorney can raise viable notice defenses. You can argue that the driver had no reason to believe and no knowledge that the vehicle was uninsured. In most cases the registered owner of the vehicle will typically be the driver. If someone other than the owner is operating the vehicle then a ticket for driving without insurance can still be issued. However, it will be very difficult for the prosecutor to prove his case. Additionally, if someone other than the owner is issued a ticket for driving without insurance then the prosecutor must prove that the driver knew or should of known by the attendant circumstances that the vehicle was uninsured. New Jersey case law requires a sliding scale analysis to review these types of cases. The closer the relationship between parties, then the more likely the court will rule that the defendant had full knowledge that the vehicle was not insured. Nonetheless, these types of cases are very fact specific. I have successfully defended members of the same household by showing that it was virtually impossible for the operator to know that the vehicle was uninsured.

In summary, the most frequently raised defense in no insurance cases is that the insurance company failed to properly cancel the driver’s insurance policy. Title 17 of the New Jersey Statutes provides the necessary steps that an insurance company must adhere to so as to properly cancel insurance. Proving that the insurance company failed to follow the proper legal procedure is also an involved and technical defense. However, they can be still be won if you have a reasonable judge who is sympathetic to your client’s plight and “story” as to why his vehicle was not insured.

When the Motor Vehicle Commission or the M.V.C. wants to suspend a persons driver’s license it must first send out a form called a notice of a proposed suspension. Once you receive this form then you will immediately become unnerved and it will also ruin your day. Nonetheless, you can’t just rip up this notice and throw it in the garbage. If you receive a notice of proposed suspension then you must hire a lawyer and defend yourself. If is critically important that you must protect your legal right to a hearing, and to vigorously contest any proposed suspension of your driver’s license.

Over the last decade more than one million New Jersey drivers have opened up their mailbox and found a terrifying notice of a proposed suspension letter from the M.V.C. This letter or notice will advise the driver that (1) that the M.V.C. intends to suspend the person;s driver’s license; (2) the grounds for the proposed suspension; and (3) the effective date of the proposed suspension. If you receive a notice of a proposed suspension then you should not throw it away and simply hope that your driver’s license problems will just go away. Instead, you should immediately hire an experienced lawyer with ample experience in M.V.C. license suspension cases.

The first step to defend against a driver’s license suspension is to write the M.V.C. and to a request a hearing. In this letter you also must specifically explain why you believe that your drive’s license should not be suspended. The letter to request a hearing must be sent to the M.V.C. via certified mail so that there is sufficient proof that the M.V.C. has received it. If a request for a hearing is sent in then the suspension will not start on the date as specified in a the notice of the proposed suspension. Be forewarned, if you simply ignore the notice of the proposed suspension then eventually your driver’s license will be suspended, and you will not be legally permitted to drive in New Jersey.

The M.V.C. will then respond by scheduling a date for a pre-hearing conference. The pre-hearing conference will be held at one of the numerous M.V.C.’s Regional Service Centers. The pre-hearing conference is simply a meeting with a M.V.C. senior employee. You and your lawyer will meet with the M.V.C. hearing officer in an informal setting and it is usually held in an office cubicle. Here, you will review your driver’s history and discuss the reasons why the M.V.C. wants to suspend your driver’s license. The hearing officer will then make the driver an offer as to the length of a proposed suspension. This process is very similar to plea bargaining. Thereafter, you can either choose to accept this offer, or you can request a full hearing before an Administrative Law Judge. If you request a hearing then it will not be held until several months later. The hearing will be held before an Administrative Law Judge from the New Jersey Office of Administrative Law. Prior to this hearing, the M.V.C. is also legally required to provide you with any and all information about your driving history, and the proposed length of any suspension. When you appear at this administrative hearing your lawyer will have an opportunity to work out a deal with the the M.V.C. before the hearing actually starts. It is important to emphasize that the vast majority of the cases are settled without having a full hearing.

How a DWI Conviction Can Wreck Your Life

1. A person will of course have his driver’s license suspended. In many fields of employment if a person loses his driver’s license then he will also lose his job. For many jobs the hard cold reality is that if you can’t drive then you can’t work either.

2. The fines for a DWI conviction are simply outrageous. For a first offense, the court fines range from $650-800; for a second offense the court fines approach $1,000; and for a third offense, the fines are more than $1,300.

3. One of New Jersey’s contributions to the United States is that we have invented the surcharge system. Many other states are now “copycatting” the New Jersey MVS surcharge system. The New Jersey Motor Vehicle Services surcharge system rakes in hundreds of millions of dollars each year for New Jersey. Even though there is a tremendous out cry to abolish this system it is not going away. In addition to the heavy fines for DWI, you must also pay a $3,000 surcharge for a first and second DWI offense(s). Finally, for a third or greater DWI offense the surcharges are $4,500.

4. The court could impose community service for a second or third DWI offense for up to 180 hours. Therefore, if you like to drink and drive and if you are busted, then you better get used to picking up garbage on Saturday mornings as well.

5. The court could impose mandatory counseling or alcohol treatment through the Intoxicated Driver’s Resource Center (IDRC). The IDRC can also compel you to do more counseling than that which the court sentenced you to, including an additional 16 week program of classes.

6. A jail term is also a distinct possibility for most DWI cases. I have never seen a Municipal Court judge sentence a defendant to a jail term for a first time offense provided that there was no accident involved. However, for a second DWI offense the jail term ranges from 2 days to 90 days. For a third time offense, there is a mandatory 180 jail term. However, 90 days of the 180-day jail term can be served in an inpatient facility.

7. A DWI conviction can also ruin your credit. Many credit bureaus now include DWI fines and surcharges on your credit report. A marked up credit report with high DWI fines and surcharges on it will lower your credit score by hundreds of points. Consequently, many DWI defendants could have a really tough time finding employment. Most prospective employers now  review your credit report before they decide to hire you. If your credit report has negative marks for DWI fines and surcharges do you really think that major corporations or Government Agencies are going to hire you?

8. If you are convicted of a DWI offense and if you are enlisted in the armed services, then you could be summarily discharged, or even required to take extensive alcohol education courses. Moreover, you could be restricted to the military base, be deprived of normal base privileges, or be given various other forms of punishment. A DWI conviction for a servicemember could also cause him a lose a rank or pay grade, he could be required to attend alcohol counseling, he could lose his driver’s license on the military base for up for up to one year, and he could have other on base restrictions imposed as well. Finally, in the more severe cases a servicemember could even be discharged or denied the right to reenlist into the service.

9. If you are a pilot you could also lose your flying license.

10. A DWI conviction could also affect your Government Security Clearance review.

11. If you are a teacher then your career could be ruined by a DWI conviction. If the Board of Education finds out about your DWI conviction, then you may not have your employment contract renewed, or you may be ultimately denied tenure.

1. What is the best defense available to try to beat a driving while suspended case?

Driving while suspended tickets issued under N.J.S.A. 39:3-40 are issued like hotcakes in the Garden State. If you driving while on the suspended list, chances are the police will bust you for this offense sooner or later. Almost all police cars now have an on board computers. Therefore, many police officers can now simply type in a license plate number and immediately find out if the driver is on the suspended list. Many police officers advise me in private that one in five of the drivers license plates that they punch into the computer show up driving while suspended.

The State normally will try to prove the knowledge element by providing copies of any notices sent by the MVC to the driver. If you are suspended by the MVC then you have to have receive two notices. The first one is a proposed suspension notice. The second is the notice of the actual suspension. These notices are sent to the address that is listed on the driver’s license. In many cases a defendant may have moved, and he may not have advised the MVC of the change of his address. Thereafter, any notices sent by the MVC notices will be sent to the wrong address. Nonetheless, the prosecutor is only required to prove that the MVC sent these suspension notices to the defendant’s last known address. Additionally, many of these notices are sometime returned undelivered.

Many defendants may also have marital problems and because of this factor they don’t receive all of their mail. I have heard of countless scenarios wherein some disgruntled ex-wife throws away MVC notices for her estranged husband. Additionally, let’s face the quality of the postal service varies from town to town. It is entirely reasonable to argue that a defendant did not receive any MVC notices because of poor mail delivery. Basically, you can blame the lack of notice on the Postman. Why not, you have nothing else to lose! The best defense by far is to allege that the defendant never received adequate notice of the alleged suspension. There is valid New Jersey case law that provides that the prosecutor must prove that the defendant received notice of the proposed suspension.

2. Could you please provide some case law to support a due process defense against a driving while suspended case?

Illustrative is the case of Parsekian v. Cress, 75 N.J. Super. 405 (App. Div. 1962). In this case the court held that the DMV must provide adequate notice to defendants of any proposes suspension of their driver’s licenses. The Appellate Division held that the DMV could not suspend a defendant without first providing notice to the driver, and by giving him the reasons for the suspension.

Another important case is  State v. Wenof, 102 N.J. Super. (Law Div. 1968). The Wenof holding also stands for the doctrine that all drivers must receive adequate notice of any proposed suspension. In the Wenof case the court emphasized that it was extremely important for any defendant to receive adequate notice of any suspension. In this case, the DMV sent a defendant a written notice of proposed suspension because he blew off a traffic ticket. The defendant initially failed to contest his license suspension. Thereafter, the DMV sent an order of suspension by regular mail. These notices were mailed to the defendant at his last address. Unfortunately, the defendant did not leave a forwarding address. Nonetheless, the court still held that the defendant did receive adequate notice and he could not complain of any lack of due process. In summary, the defendant’s conviction of driving while suspended was still upheld. Even though the driver lost his appeal, some important points of law were created by the court. The Wenof court held that due process is an important part of any driving while suspended case.

In summary the New Jersey courts have consistently held that a driver’s license may not be suspended or revoked without complying with due process standards. See, State v. Wenof, supra, 102 N.J. Super 370 (Law Div. 1968). Moreover, the New Jersey legislature has ever codified these legal rights in N.J.S.A. 39:5-30 which provides;

Every registration certificate, every license certificate, every privilege to drive motor vehicles ………….. may be suspended or revoked by the director for a violation of the provisions of this Title or on any other reasonable grounds, after due notice in writing of such proposed suspension, revocation, disqualification, or prohibition or ground thereof.” N.J.S.A. 39:5-30.

Furthermore, the New Jersey Supreme Court has held that a driver’s license may not be taken away without due process, and he must be fully informed of the charges against him, and he must be afforded a fair opportunity to be heard. Bechler v. Parsekian, 36 N.J. 242 (1961).

3. What are some good arguments that can be raised to support a notice defense against a driving while suspended case?

When a driver is charged with driving while suspended it should be argued that the prosecutor should be required to introduce: (a) Notice of scheduled suspension; (b) Proof of mailing notice; (c) order of suspension; (d) Proof of mailing order; and (e) Certified motor vehicle abstract. Quite often the prosecutor will not have all of these documents, and it will be impossible to convict a defendant.

4. How can I contest a driving while suspended case based on restoration issues?

Many drivers are pulled over because they don’t pay the restoration fee. The MVC requires that all drivers must pay a $100 restoration fee. There is a split of legal authority on the issue as to when a suspension is considered legally over. In the case of State v. Zalta, 217 N.J. Super. 209 (App. Div. 1987), the court held that a prior suspension still continues until the restoration fee is paid. Meanwhile, in the case of State v. Somma, 215 N.J. Super. 142 (Law. Div. 1986), the court held that the failure of a driver to pay the $100 restoration fee does not extend the period of the suspension.

5. How can I contest an out-of-state driving while suspended case based on an out of state suspension?

In many cases a defendant is given a driving while suspended charge because he is suspended in another state. Believe me most prosecutors will never obtain the necessary paperwork from the sister state to enable New Jersey to obtain a conviction. If a person’s driver’s license has been suspended in another state, then the defendant can still be charged with driving while suspended in New Jersey.

An illustrative case is State v. Profita, 183 N.J. Super. 425 (App. Div 1982). Here the defendant was a New York driver and she was suspended there because she blew off a traffic ticket. Eventually she was busted for driving while suspended in New Jersey. She admitted to the officer that she knew that she was suspended in New York. The Appellate Division affirmed her driving while suspended conviction even though the New Jersey MVC took no action to suspend her New Jersey driving  privileges. In this case, the prosecutor would have never been able to prove that the defendant was aware that her license was suspended. However, the defendant sunk herself by giving a confession.

6. How can I contest a driving while suspended based on unpaid parking tickets?

Many drivers are ultimately suspended because they don’t pay their parking tickets. These knuckleheads usually throw away their tickets, or they just forget to pay them. Unfortunately parking tickets never just disappear. If parking tickets go unpaid they eventually create a snowball effect. A simple unpaid parking ticket can lead to a driver’s license suspension for driving while suspended. Eventually, the Parking Offense Adjudication Act N.J.S.A. 39:4-139.2 will catch up to a driver who blows off his parking tickets. If the suspension for the failure to pay a parking ticket was ordered by a Municipal Court, then defense counsel could subpoena from the suspending court any copies of notices that were mailed to the driver. Many Municipal Courts won’t be able to provide such notices. They either won’t have these notices because they were not sent out. Moreover, these notices could be lost. Finally, in many cases the Municipal Court clerks may be too busy to comply with the requests as specified in the subpoena.

Nonetheless, the due process/notice requirements could provide an excellent defense against a driving while suspended based on unpaid parking tickets. If the originating court failed to provide proper notice of the proposed suspension, then the defendant can argue that there were no adequate grounds to justify any type of suspension.

7. How can I contest a driving while suspended case that was enhanced because of a prior conviction(s)?

The driving while suspended laws require mandatory enhanced penalties on conviction for a second and third offense. Moreover, an additional ten days of jail time can be added for every driving while suspended after the third one, if it was committed in conjunction with a moving violation.

In this scenario defense counsel should try to attack the prior convictions. In certain circumstances, a prior conviction may not necessarily count for sentencing purposes. If a defendant was not represented by legal counsel, then some judges may be persuaded that this conviction should not count as a prior for sentencing purposes. See, State v. Laurick, 120 N.J. 1 (1990), cert. denied, 498 U.S. 967, 111 S. Ct. 429 112 L. Ed. 2d 413 (1990).

Another interesting issue is whether an administrative suspension by the MVC should count as a prior conviction for sentencing enhancement purposes. Both the MVC and a Municipal Court can suspend a defendant. A strong argument can be made that a prior MVC conviction should not count as a prior conviction for sentencing purposes. Illustrative is the case of State v. Conte, 245 NJ Super. 629 (Law Div. 1990). Here, the court examined a case where a defendant had two prior administrative suspensions by the MVC pursuant to N.J.S.A. 39:5-30 and N.J.A.C. 13:19-10.8. The defendant had no prior court-imposed suspensions/convictions.

In a trial de novo, the Assignment Judge Longhi held that a suspension by the MVC does not count as a prior driving while suspended conviction. In his opinion he provided in pertinent part:

The word conviction is not defined in the statute. Blacks Law Dictionary defines conviction as a  final judgment in a verdict or finding of guilty. Blacks Law Dictionary (6th Ed. 1990) at 333. N.J.S.A. 2C:44-4(a) defines a prior conviction of an offense as an adjudication by a court of competent jurisdiction that the defendant committed an offense constitutes a prior conviction. A Conviction has also been defined as the confession of the accused in open court or the verdict returned by the jury which ascertains and publishes the fact of guilt. Tucker v. Tucker, 101 N.J. Eq. 72,73, 137 A. 40 (Ch. 1927).

The motor vehicle statute, N.J.S.A. 39:3-40, is quasi-criminal and penal in nature and must be strictly construed against the state. State v. Churchdale-Leasing Inc., 115 N.J. 83 (1989). The word conviction, as it is used in N.J.S.A. 39:3-40, refers only to a plea or a finding of guilty in a court of competent jurisdiction and not an order of suspension entered by the MVC as the result of an administrative proceeding. The two prior suspensions are not convictions and the defendant must be viewed as a first offender under the statute. See, State v. Conte, supra, 245 N.J. Super. at 631.

In the Conte case the sentence imposed was reversed. Moreover, the case was remanded for re-sentencing the defendant as a first time offender. In summary, it should always be argued that a suspension by the MVC does not count a prior conviction for sentencing purposes in a driving while suspended case.

In New Jersey a driver’s license can be suspended for an ever increasing amount reasons. This article will address the most common types of suspensions that a person can get in New Jersey.

1. Suspensions for Driving-Related Violations and Points

If you are found guilty of too many traffic tickets then your license may be suspended either by the Municipal Court judge or by the MVC. The MVC will send you a notice to inform you that your license will be suspended via a notice in the mail. This notice will advise you that license is scheduled to be suspended for certain reasons usually too many points. The notice will also explain what steps you can take to avoid a suspension. For example, if you have obtained 12 or more points, then in many cases you can attend a Driver Improvement Program to remove three points from your license and avoid the any scheduled suspension.

If you contest the MVC’s decision to suspend your license, then you must send them written notice to request a hearing. You should always request this hearing via certified mail. If your license has been suspended because of too many points, then you should contact the MVC to ask how long the suspension will last for and whether you owe any fines. The hearing will take place at a MVC regional center. These centers are located in Newton, Eatontown and Trenton. You will then meet a mid-level MVC hearing officer to discuss your case. Thereafter, the hearing officer will review your driver”s record on the computer, and he will ask you for your side of the story. You should always be courteous and respectful to the hearing officer. In most cases the MVC hearing officer will only suspend your license for a minimal period that can range from 14 to 30 days.

2. Suspensions for Failure to Appear in Court

If you fail to appear in Municipal Court for any reason, then the court will order that your license be suspended. You can’t expect to blow off the court system and get away with it. If you can’t remember which Municipal Court you blew off then you should call the MVC to find out which courts have suspended your license. In some cases, a warrant may have been issued for your arrest. Once you appear in court, then the warrant will be lifted, and you can request the court to lift your suspension.

3. Suspensions for Unpaid Parking Tickets

A suspension for an unpaid parking ticket is ordered by the Municipal Court wherein the ticket was issued. Therefore, if you blew off parking tickets in New Brunswick, then the New Brunswick Municipal Court most probably ordered that your license be suspended. To lift this type of suspension, then you must either appear in the court and contest the parking ticket and have the court dismiss it, or pay the fine for the ticket. If you want to contest the ticket, then you must follow the instructions on the ticket or call the municipal court that issued the ticket. If you blow off a parking ticket, a warrant will likely be issued for your arrest. If a warrant has been issued, then you must turn yourself into the court before you will be given a court date to contest the ticket. In closing, blowing off parking tickets can really have a snowball effect. Ultimately, you could receive a citation(s) for driving while suspended, and if found guilty you could have to pay mega-surcharges. All of this aggravation stems from an unpaid parking ticket. What a system!

4. Suspensions for Failure to Pay a Court-Ordered Penalty

A suspension can be imposed if you fail to pay any court-ordered fines. A warrant may also be issued for your arrest if you have failed to pay off the court-ordered fine. I have seen warrants issued even if a defendant did not pay a $10 late fee on a ticket. The court’s personnel are zealous in their efforts to collect their fines. If a warrant has been issued, then a bond or bail amount will likely be set at the total amount owed to the court. If you cannot pay the full amount, then you may ask the court for a payment plan. Usually, once there is a payment plan in place and a payment has been made, then the suspension will likely be lifted. However, if you miss a payment, then the  court will probably suspend your license once again. Thereafter, the court will be less inclined to agree to a second payment plan.

5. Suspensions for Failure to Pay Child Support

If you have fallen six months or more behind on your child support payments, then your driver’s license will be suspended. Moreover, a warrant for your arrest could be ordered by the court. Thereafter, you should contact the Family Court that ordered your suspension to get more information about the amount of the arrears and the warrant. Generally, once a payment plan has been agreed to with the court, and payment has been made, then this type of suspension can be lifted.

6. Suspensions for Failure to Pay Insurance Surcharge

The MVC can also impose fines and they are called insurance surcharges. Surcharges can be imposed for many types of traffic tickets, for driving while suspended, having no insurance, and for everyone’s most dreaded offense – DWI. Surcharges are imposed once per year for three years continuously. If you fail to pay your surcharges, then the MVC will simply suspend your license. The MVC will suspend your license by sending you written notice. If you are a mobile person and move around a lot, then odds are you will never receive any suspension notice from the MVC. You could be in for quite a surprise if a police officer stops you, impounds your car, and then arrests you for driving while suspended.

By way of summary driving while suspended because of to outstanding surcharges will only create additional fines and a suspension. Surcharge-related suspensions can only be lifted by (1) paying the surcharge in full; (2) paying a lower amount on a negotiated payoff amount; or (3) by agreeing to a payment plan.

Unfortunately, there is no actual negotiation involved in a negotiated payoff amount. Instead, the Surcharge Department will mail you a lump-sum payment notice for an amount that is slightly less than the total due. If you cannot pay the negotiated payoff amount, then you should call the Surcharge Department and request a payment plan. If the payment amounts(s) in the plan offered by the MVC are too high, then you should request lower payment amounts. Once a payment plan is agreed to and a down payment is made, then your license will no longer be suspended. However, if you miss a payment, the MVC will impose a new suspension and you will again owe the remaining unpaid surcharge amount. If you cannot pay the surcharges at all, then it may be advisable to contact a bankruptcy attorney, and try to discharge your surcharges through bankruptcy. Surcharges can only be dischargeable in a Chapter 13 and not in a Chapter 7.

7. Suspensions for Failure to Carry Insurance

If you are found guilty of driving without insurance, then the court will order your license suspended and possibly impose a fine. The MVC will impose an additional suspension. The MVC suspension may be lifted only after you (1) provide proof of insurance or (2) turn in the registration and license plates of the uninsured vehicle. Additionally, you must pay all fines and wait for the suspension period to pass before you will be eligible to begin the restoration process.

8. Suspensions for Criminal Code Violations

A suspension may be imposed as a penalty for the conviction of some criminal offenses, whether or not a motor vehicle was involved. The length of the suspension will vary depending upon your sentence. You can contact the Criminal Division Manager in the county where your sentencing took place to find out what statute you were convicted under.

In many cases, the suspension period is mandatory and will begin when you are released from jail. If the suspension is not mandatory, then you may want to discuss your suspension with an attorney to determine if any steps can be taken to reduce the imposed suspension. Once you have waited the ordered amount of time, then this type of suspension will be lifted.

Who is Theodore Sliwinski, Esq.?

For more than eighteen years, Theodore Sliwinski, Esq. has been helping people survive in the New Jersey Municipal Courts. He is a member of the bars of New Jersey, Pennsylvania and Connecticut. He has also handled thousands of Municipal Court cases all throughout the State of New Jersey.

He graduated with Honors from Duke University in 1987. He also has obtained a Masters in Laws from Villanova University Law School in 1992. Moreover, he attends many seminars on DWI law and Municipal Court practice each year.

Mr. Sliwinski’s mantra is to always provide a strong DWI defense at an affordable price. He believes that a person should not be forced to wipe out their savings account, or max out their credit cards just to pay for an attorney.

If saving your driver’s license and staying out of jail are important to you, then contact Mr. Sliwinski, Esq. for your free consultation. Weekend and evening appointments are always available.

Reasonable Flat Fees and Hourly Rates

For more information about fees, please contact him. He is open 24/7. For your convenience he also accepts all four major credit cards.

In any case, your first consultation with Mr. Sliwinski, Esq. is always free. At your meeting, Mr. Sliwinski, Esq. will explain to you your legal rights, the possible penalties of a DWI conviction, and how the court process works. Moreover, he will give you an honest and reasonable legal opinion of your case.

The plain hard truth is that most DWI cases just can’t be won. However, an experienced lawyer can in most cases keep a DWI defendant out of jail. Don’t risk going to jail if you can avoid it! You can discover how Mr. Sliwinski, Esq. can keep you out of jail and also save your driver’s license by contacting him.

Many states allow DWI drivers to continue to driver with a limited driver’s licenses. These licenses are commonly called Sunset licenses. These driver’s license permit the person to drive to work, religious observance, or necessary matters such as shopping or doctor’s visits. However, New Jersey does not allow any work or temporary driving permits or licenses. If you are convicted of a DWI charge in New Jersey, then you will not be able to drive in New Jersey for the period of your suspension. Nonetheless, if you are licensed in another state, then you can drive anywhere else besides New Jersey unless or until your home state suspends your driving privileges based on the New Jersey conviction.

On the bright side, some Municipal Courts will permit you a few adjournments of your case to enable you to wrap up any of your affairs at work. The Municipal Courts try to be as reasonable as possible. However, there are no work licenses in New Jersey, and there never will be any. The liability for the government is too great. What would happen if a DWI driver killed someone on the road while driving on his or her temporary license.

The New Jersey police agencies rely on the alcotest machine to produce hard evidence that a driver is drunk. However, there are times when the police will seek to obtain obtain a blood test. In most cases, a blood sample will be taken if a DWI defendant has been injured in a car wreck.

You cannot choose whether to give blood or breath: it is up to the officer who arrested you. You can refuse to give blood, and it cannot forcibly be taken from you. You cannot then be charged with “Refusal”, since the Refusal statute addresses only the failure to submit to chemical breath testing.

The officer only needs probable cause to believe that you are under the influence to request blood be taken from you. The blood can only be extracted in a “medically acceptable manner” by a person licensed to do so. Any blood tests are usually performed at a hospital.

In New Jersey unlike most other states, does not have any regulations about who may draw the blood, how the blood must be drawn, how it must be handled and then how it must ultimately be tested. There are, however, proper ways to do all of these, based on the standard protocols.

Your attorney should be prepared to fully evaluate the evidence, making sure that the proper items are provided by the State to assess your case. Mistakes are made and errors invariably occur. Unless a thorough evaluation of the evidence is made many possible defenses may never be determined.

Some of the items to evaluate are:

1. Was an alcohol swab used that would then affect the alcohol content in your blood?
2. Where was the blood drawn from, artery or vein?
3. Was a proper amount of blood drawn into tubes that contained the right amount of preservative and anti-coagulant?
4. Were the tubes defective in any way?
5. Was the blood sample contaminated in any way by the phlebotemist, the subsequent handling of the blood, or through the testing process?
6. Was the sample properly tested at the lab?
7. Can the State demonstrate proper “chain of custody” or handling of the blood throughout the process?

In New Jersey you must be 21 to purchase, possess or consume alcoholic beverages. Underage drinking is illegal, and It can have severe consequences for young people who drink, and for adults who provide alcoholic beverages to those under 21.

If a driver buys and drinks alcohol in a place with an alcohol beverage license, then you may be fined $500, and lose your license for 6 months. If a driver does not have a driver’s license, then the suspension starts when the driver is first eligible to receive a license. Moreover, the underage driver may be required to participate in an alcohol treatment program.

If you are under 21 and drive with any detectable amount of alcohol in your system (.01 % BAC or above), you will be subjected to the following penalties:

• Loss or postponement of driving privileges for 30 to 90 days.
• Participation in a program of alcohol education and highway safety.
• 15 to 30 days of community service.

There are numerous ways to defend against a New Jersey DWI charge. There are no guarantees that any of these defenses will work. However, if you don’t “build up” your DWI defense, then don’t expect any downgrades or dismissals at court. Here is a list of some of the best DWI defenses that are commonly used by New Jersey DWI attorney Theodore Sliwinski, Esq. Not all of these defenses will apply and be successful in every DWI case. This is simply a list of some of the defenses to use if you are charged with a New Jersey DWI.

1. Contest the Field Sobriety Tests - The bottom line is that the Standardized Field Sobriety Tests (SFST’s) are not reliable evidence to prove that a person is intoxicated. In a healthy person, the  one leg stand test is only 65% accurate. The walk ‘and‘turn test is also only 68% accurate. Any person with injuries, medical conditions, fifty pounds or greater overweight, and sixty five years or older cannot be validly judged by field sobriety tests. The eye test is not admissible in N.J. courts to prove that you were intoxicated. By knowing the rules for the administration for the tests a skilled New Jersey DWI lawyer can show how the tests are biased.

There are many grounds to contest the field sobriety tests. These best defenses are:

a. The field sobriety tests are not scientific.

b. The police officer was not properly trained.

c. The officer did not use standardized NHTSA tests.

d. The officer did not properly instruct you on how to perform tests.

e. The officer did not use objective standardized scoring criteria.

f. The officer had you perform the tests under improper conditions.

g. Your age or weight make you an improper candidate for tests.

h. You have a physical disability that makes you an improper candidate for these tests.

I. You have a psychological condition that makes you an improper candidate for the tests.

j. The officer lied about your performance.

2. Contest the Non-Standard Field Sobriety Tests – These non-standard field sobriety tests are also not that reliable. The silly test(s) of touching your finger to your nose, saying the alphabet, or counting backwards are not valid tests to determine intoxication. In summary, neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests.

3. Challenge the reason(s) for the stop - Police officers can’t stop a vehicle on a mere hunch, and they can’t arrest  you without having sufficient “probable cause.” The police must have “reasonable suspicion” to stop a vehicle. Generally, these are subjective observations by the police are based on something unusual about the way a person is driving. This is a very low standard and it can be satisfied by virtually anything which appears out of the ordinary that might be a sign of a driver being under the influence. As a general rule: if the police want to stop you and investigate something, they will, and they will justify their actions afterward. Therefore, if the police officer stops a vehicle just because he saw the driver walk out of a bar and get into the car, then the DWI charge could be dismissed based on a violation of the driver’s constitutional rights.

Some common scenarios that have constituted “reasonable suspicion” are as follows; the license plate lights are out; the  brake lights not working; the tail light out; headlights out, loud music, apparent underage drivers out late at night; turning to wide, turning to narrow, driving to fast, driving to slow, unusual activity in the car,‘ having sex, and drinking from a shiny container. Basically, the facts that support reasonable suspicion are only limited by the imagination of the police. In fact it is not unusual for the police to stop a driver with a license plate light not working, and mysteriously the next day the light starts working again. In most DWI court cases it is your word against the police. Most Municipal Court judges tend to give the police the benefit of the doubt absent extraordinary circumstances, direct contrary proof, or the officer’s bad reputation.

If the police stop you for any traffic violation, no matter how minor, then it is sufficient to justify the traffic stop. Once you are stopped then the police must then establish reasonable suspicion that you might be driving impaired. Some of the more obvious signs that the police look for are: smell of intoxicants; slurred speech; bloodshot watery eyes; admission to drinking; alcohol containers in the vehicle; and mood swings, i.e. laughing one minute and crying the next. The observation of any of these would establish “reasonable suspicion” for the police to continue the investigation. The reason a police officer asks you “have you been drinking tonight” is because if he gets a “yes” answer from you, he right then and there has established “reasonable suspicion” merely because you were driving the car and admitted to drinking.

In summary it is essential to file a motion to suppress in most of the DWI cases. The failure to file a motion to suppress is the biggest mistake made in most DWI cases. Even though this motion doesn’t succeed very often, a DWI case can still be won by simply filing one. Although a motor vehicle stop is generally legally justified if you were weaving from lane to lane, any weaving within a lane may not make the stop justified. It is important to emphasize regardless of the ultimate success of a motion to suppress, this motion may resonate with the Municipal Court judge.

In my professional opinion the best defense to any DWI case is that the initial stop of the vehicle was not based on probable cause, and that the stop was unconstitutional. Many Municipal Court judges don’t like to “buy” technical arguments that the Breathalyzer or the Alcotest machine was malfunctioning or inaccurate. Most Municipal Court judges also don’t want to get a reputation for being “soft” on DWI drivers. However, many Municipal Court judges will be much more inclined to dismiss a DWI case if there are real constitutional violations. It is much more respectable for a Municipal Court judge to dismiss a DWI case on Fourth Amendment grounds instead of a perceived legal loophole created by a police officer’s mistake, or by a malfunctioning Alcotest machine.

4. Videos or Dispatch Tapes – All New Jersey State Troopers, and local police departments have video cameras in their patrol vehicles. These videos along with videos from testing rooms, booking rooms, and other sources can provide strong defenses to some DWI charges. In some cases these videos can prove that the results of the field sobriety tests are not as poor as the officer alleges. In many cases these tapes significantly contradict what the police allege in the police reports. Quite often these tapes prove that the driver’s speech was not slurred, or incoherent, their balance was not swaying and/or stumbling, and that their attitude was not uncooperative or belligerent.

If a skilled lawyer obtains these videos or dispatch tapes then he can use them to impeach the police. A skilled DWI defense lawyer can prove that the police officer had a bias toward the driver, and that he is not accurately testifying about the driver’s clues of intoxication. It is important to emphasize that most vehicle stops are audibly recorded on dispatch tapes. It is imperative that these tapes are obtained and carefully reviewed.

5. Breath Test Operator License Expired - An N.J. breath test operator must possess an unexpired operator’s license or the breath test result is inadmissible. An operator’s license automatically expires in three years. In many urban cities it is quite common for the breath test operator to have their Alcotest operator’s license expired. The operator’s license has to be renewed every three years. The bottom line is that in the urban arrears the police departments have to fight higher grades of crime. Sometimes DWI enforcement must take a back seat to fighting more serious levels of crime. Consequently, in my experience it is not uncommon for the operators in New Jersey urban cities to have their operator’s card expired.

6. Challenge the breath tests - Breath testing is often very inaccurate. Virtually all experts concede that one breath test alone is unreliable. Breath testing is subject to many inherent inaccuracies. The breath test is the most common test that people are asked to take once they are taken to the police station, but it is also highly susceptible to error. If the Alcotest is not administered correctly, then it will not accurately measure your blood alcohol concentration. Thereafter, your lawyer may be able to persuade the judge to throw the breath test results out. The main reason for the breath test’s potential inaccuracy is that, while it is supposed to measure how much alcohol is in your lungs, any residual alcohol in the mouth will result in a mistakenly high reading. Below is a list of additional factors that can make a breath test unreliable.

A. The Temperature of Your Breath

The breath test works on the assumption that your breath is 34 degrees centigrade. Studies done with this equipment have shown that the real average breath temperature for people who have been arrested on a DWI is closer to 35.5, with some as high as 37. This alone would mean that the result of the test would be between 10 and 20 percent higher than it really is.

B. How Fast Your Body Eliminates the Alcohol

Everyone has a different metabolism, but the breath test assumes that everyone is the same. This means that a person whose body gets rid of alcohol slower will have a higher BAC than someone with a faster metabolism, even after having the same amount to drink. Breath testing assumes that the person is “post absorptive.” This means that the test assumes that the person is no longer absorbing alcohol into the blood. If you have a slow metabolism, you might still be absorbing alcohol by the time you take the test. If so, it will read your B.A.C. as significantly higher than it actually is. If you know or suspect that you have a slower than an average metabolism, you may eventually argue that your metabolism skewed the result of your test.

C. Belching, Hiccuping or Vomiting Prior to a Test

Time is the most important factor here. A person should not be tested for at least 15 minutes after belching, hiccuping or vomiting, as this increases the amount of alcohol on the breath. The police officer is required to constantly observe you to ensure that you have not belched, hiccuped or vomited within 15 minutes of taking the test. Constant observation is a rule that the police officer must follow. If it is not followed, then the results of the test may be called into question.

D. Problems in Mouth, Such as Blood, or Dentures

If there is any blood in your mouth when you take the test, it may increase the B.A.C. result. If you have dentures, which trap alcohol in the mouth, then it could skew the test result(s).

E. Other Chemical Compounds in Your Mouth

Strictly speaking the Alcotest does not detect alcohol (ethyl alcohol). It only detects part of the alcohol molecule called the methyl group. The significance of this is that the Breathalyzer will also register other compounds besides alcohol, other compounds that are commonly found in human breath. If any of these compounds are present, then it will result in an inflated and inaccurate B.A.C. reading.

7. The Alcotest Machine Malfunctions – In my experience it is quite common for an Alcotest machine to malfunction. The Alcotest is a machine that is manufactured by Draeger Safety, Inc. The manufacturer still has not removed all of the “kinks” from the machine. Moreover, the Alcotest machine is based heavily  software. As we are all aware software constantly have glitches.  I have had several cases wherein the police were required to transport their DWI suspect to several different local police stations to administer their breath test(s) on the Alcotest machine. The reality is that the Alcotest machine is also constantly breaking down and malfunctioning. If there is a malfunction of the breath test machine, then your test results will not be accurate. If the prosecutor can’t prove that all the proper procedures were followed with the regard to the operation of the Alcotest machine, then the results of these breath tests will not be admitted into evidence. If you are going to rely your DWI defense on the grounds that the Breathalyzer or Alcotest machine malfunctioned then you must obtain an expert’s report to bolster your defense.

8. Breath Test Operator Unlicensed – A breath test operator must possess a valid operator’s license, or the breath test is inadmissible. The reality is that many DWI arrests are made late at night and on weekends. Quite often the more experienced police officers do not work during the night shift. The rookies are often required to work the night shifts and on weekends. In my experience the rookies are not as competent as the experienced police officers are to conduct the breath tests on the Alcotest machine.

9. The Alcotest Machine Not Properly Operated - There are specified procedures which must be followed for a breath test to be valid. The failure to follow these procedures can result in an improper B.A.C. reading(s), and it may be a reason to bar the readings from court.

10. Medical and Health Problems – In some cases a DWI suspect’s medical problems can be used to discount the results of any failed sobriety tests. A DWI suspect’s medical problems with his legs, arms, neck, back and eyes could affect the results of field sobriety tests. Sometimes a crafty lawyer can use a DWI suspect’s medical problems to “explain away” why their client may have failed the sobriety tests.

11. The Officer’s Prior Record and Statements – A police officer’s prior disciplinary record can be used to challenge the officer’s credibility. Furthermore, if the police officer has previously testified in a DWI case about the reliability of tests or how to administer them, then this prior testimony can be used to challenge the officer’s skills at administering field sobriety tests if he answers differently from trial to trial. Moreover, if the police officer misled the driver about the consequences of refusing to submit to tests under New Jersey DWI law then the results of the refusal, or the readings from the machine may be excluded in court.

12. Bad Weather – Any weather reports that establish low visibility, high winds, and other conditions can be used to explain poor driving or balance on the field sobriety tests. The weather reports can be used to establish high winds, low visibility, and other conditions to explain poor driving or poor balance.

13. Failure to Conduct Observation Period – If the police fail to keep you under observation for twenty minutes prior to the breath testing, then the results of the breath tests could be thrown out of court. The police are required to observe the DWI suspect for twenty minutes before any breath tests are administered. The police officer must observe the DWI suspect to determine if he throws up, belches or burps. If the DWI suspect should throw up, belch or burp then this could compromise the breath test, and produce an inaccurate B.A.C. reading(s). A DWI suspect must be observed for twenty consecutive minutes, and he must not be observed throwing up, belching or burping.

14. Independent Witnesses – In some cases there are witnesses who observe accidents. Consequently, bartenders, hospital personnel and others can provide critical evidence of the defendant’s sobriety.

15. Failure to Read the Implied Consent Warning – A police officer must completely read the driver New Jersey Implied Consent law before the driver submits to the breath test. The police officer must read the DWI suspect Article 36. These provisions explain to the DWI suspect that he must take the breath tests or he will lose his driver’s license on a refusal charge. In many cases the police officer does not fully comply with Article 36. Sometimes, the police officer simply forgets to read Article 36 to the DWI driver. This mistake could prove to be critical. The failure to read the form or failure to read the correct form may result in the dismissal of DWI charge.

16. Errors with the Alcotest 7110 Machine - There are many critical errors that may occur with the Alcotest machine. These potential errors include; a) the failure to input the correct arrest information; b) there are improper machine settings; c) the failure of the machine to recognize errors in testing; and d) the failure of the machine on timing issues during the testing.

17. Interfering Substances – A false breath test could be caused by many interfering substances. Asthma spray, cough drops, paints, or fingernail polish, which contain forms of alcohol all can create higher B.A.C. readings during breath testing. Moreover, if a DWI driver is exposed to certain chemicals then this factor can also improperly increase the B.A.C. readings. The chemicals that a person works with or use may cause a false positive result on the breath tests.

18. Failure to Provide a Speedy Trial – If a DWI driver is not provided with a trial within a certain period of time, through delays of the court or prosecutor, then the charges must be dismissed. The A.O.C. guidelines require that DWI cases be resolved within 60 days of the date of the arrest. In my experience I have never seen a Municipal Court judge dismiss a DWI charge based on the grounds that the DWI suspect’s constitutional right to a speedy trial was violated. In theory a DWI defendant can always argue that his case should be dismissed on the grounds that his constitutional right to a speedy trial has been violated. However, for all practical purposes in my 18 years of practice I have never seen a Municipal Court judge dismiss a DWI case on this ground. The bottom line is that DWI trials are often endlessly adjourned. Many Municipal Courts are overwhelmed and they can’t handle all of their cases.

19. Expert Witness – Expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests. If you really want to increase your odds of “beating your DWI” then it is imperative that you obtain an expert witness. The best expert witness in New Jersey on the area of DWI law is Gil Snowden of DWI Consultants. Mr. Snowden has worked for the New Jersey State Police for almost two decades. He was also their head Breath Test Coordinator Instructor. Basically, he inspected the Breathalyzers for all of New Jersey’s local police departments for decades. He inspected the Breathalyzer to ensure that they were in proper working order.

Mr. Snowden is retired from the New Jersey State Police and he formed his own company called DWI Consultants, Inc. His expert fees are very reasonable. He reviews the discovery, the videotapes and any other discovery and he will assess your chances of beating the DWI charge. Moreover, he will review the discovery and advise you if the Alcotest machine was in proper working order and if it was operated correctly. Basically, he will review the case and advise you as to the strength of any possible defenses and any “loopholes” to purse. If there are none, then he is very straightforward and he will advise you so.

20. Blood Test Are Inaccurate – The admissibility of blood tests in a DWI case depends on the procedures that were used when taking of the sample. In some cases the nurse at the local hospital fails to follow the prescribed rules of testing, analysis, and preservation. Hospital tests have been shown to overestimate a blood sample by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons. When hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results can report falsely elevated readings.

21. Failure to Provide Complete Discovery – If the prosecutor has not provided all the required evidence, then a motion to compel evidence must be filed. If the discovery is still not provided by the date ordered by the judge, then the charges may be dismissed. The prosecutor must also provide the DWI defendant with an after certificate. Basically an after certificate verifies that the Alcotest machine was in proper working order when the DWI suspect was given his breath test.

The New Jersey State Police send a Breath Test Coordinator Instructor to inspect the Alcotest machine each and every month at every local police station. The inspector must issue a Breath Testing Instrument Inspection Certificate each month. Sometimes there are glitches and the local police departments do not receive their after certificates in a timely fashion. In some cases a strong DWI defense lawyer can use this mistake to force a Municipal Court Prosecutor to agree to a downgrade of a DWI charge from a seven-month suspension to a three-month suspension. In my experience some Municipal Court prosecutors are swamped and they simply don’t provide you with adequate discovery no matter how many times it is requested. If the court is open-minded then in some cases this mistake can be used as leverage to obtain a downgrade of the DWI charge, or to obtain a lesser sentence.

In summary it is imperative to obtain the after certificate. Moreover, it is important to review at least one year’s worth of Breath Testing Instrument Inspection Certificate. A review of these certificates often reveals that the Alcotest has a history of malfunctioning and of overheating.

22. Drug Based DWI’s / Drug Recognition Evaluation (DRE) – If your blood pressure and temperature were taken, and if you were induced to perform additional physical tests in the police station, then you went through D.R.E. protocol. This D.R.E. protocol has not been proven reliable in New Jersey court.

23. Operation/Driving – In many cases a DWI defendant may try to sleep in his vehicle in the parking lot of the local bar or of a night club. In my experience the police have been very diligent and they have been arresting people even if they can’t prove operation the vehicle. Quite often the police will issue a DWI citation merely because they find a person sleeping in the bar’s parking lot, and they smell alcohol on the person. If the police officer wakes up that person and then smells alcohol, then in most cases he will a DWI citation. In this type of scenario, the key issue is whether the driver had an intent to drive. A critical fact is where the driver’s keys are located. If the keys are located in the ignition then New Jersey case law indicates that this is sufficient to prove operation. However, if the keys are located in a person’s purse on somewhere else in the vehicle, then in most cases this is not sufficient to prove operation.

24. Mouth Alcohol – Mouth alcohol refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

25. Blood alcohol Concentration – There exists a wide range of potential problems with blood, breath or urine testing. “Non-specific” analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100 to 1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-‘examination of the state’s expert witness, and/or the defense can hire its own forensic chemist.

26. Raise Constitutionally-based Crawford Issues at the Trial. In New Jersey DWI drivers are routinely denied their  constitutional rights. This makes New Jersey one of the most difficult states in which to defend anyone accused of committing a DWI. New Jersey DWI cases are based on the alcohol content of your breath. The calibration of the Alcotest is very critical. Quite shockingly, a person who is accused of committing a DWI is routinely denied the right to question the witnesses who calibrate these machines. If the prosecution is based on the results of the Alcotest machine, then you are routinely denied the right to even find out what was done to calibrate the Alcotest machine!

If the DWI prosecution was a civil case, then you would have the right to depose and ask questions under oath  of anyone who had anything to do with calibrating the breath machine. At this questioning you could ascertain what manuals they relied on, and the results of whatever tests they ran. However, a DWI prosecution is a criminal case. Therefore, under New Jersey law you do not have this right! This is worth your while, since even a first time DWI conviction results in about $1,000 in fines, usually a 7-month loss of license, a surcharge of $1,000 per year for three years, and vastly increased car insurance costs in the neighborhood of $5,000 to $7,000 per year for three years. And this is true for anyone in the household, because they all have access to the car.

Unfortunately, DWI cases are conducted in Municipal Courts wherein you have no right to a jury trial. The Municipal Courts hold fast to trying to convict you within 60 days of your ticket! In 2004 the United States Supreme Court decided the seminal case of Crawford v. Washington, 541 U.S. 36 (2004). This case held that the state must produce witnesses whose written statements are “testimonial”; the state cannot use their written statements, without them testifying at trial, to prove their case. A testimonial statement is any written statement (or out of a court statement) made for the purpose of proving a fact in court. New Jersey adheres to the Crawford case when blood is drawn to see if you are under the influence of alcohol. However, the Municipal Courts do not adhere to the Crawford case when your breath is analyzed for alcohol content, at least not yet.

There is very little difference between a blood and breath analysis. The number of witnesses that the state needs to prove a breath case is much greater than proving a blood case. There is no legal difference other than this. However, this difference makes all the difference in trying a DWI case New Jersey. When selecting a lawyer to defend you, you need someone who is very familiar with the Crawford case. This is especially so when the state’s documents seem to prove that the Alcotest machine was in proper working order.

27. Weaving Inside the Lanes is Not Illegal – In many DWI cases the police also cite the DWI driver for weaving. It is very important to emphasize that weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason.

28. Anonymous Report of Drunk Driving – A vehicle cannot be stopped simply because an anonymous citizen reported that the driver was drunk.

29. Failure to Mirandize – Prosecutors may not use as evidence the statements of a defendant in custody for a DWI when the police have failed to properly issue Miranda Warnings.

30. Illegal Search – The police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence that was illegally obtained is not admissible in court.

31. Prior Inconsistent Statements by the Police - Any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used to attack that officer’s credibility.

32. Failure to Produce Dispatch Tapes - Most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. The failure to preserve such tapes upon a discovery request can cause all evidence, which could have been recorded to be suppressed.

33. Forced Blood Draws – A DWI driver cannot be forced to give blood or urine. If you were forced to do so, then these results can be suppressed. If you refuse to give blood or urine, you cannot be charged with refusal; as refusal applies to breath testing only, in NJ. In New Jersey the police may not take a blood test against the driver’s consent where there has not been an injury involved, or the result is inadmissible.

34. Draeger Certificates Have Expired – The Alcotest machine has several certificates that must be updated continually by Draeger Safety, Inc. The certificates verify that the Alcotest machine has been tested and that it is in proper working order. Quite often if you carefully review the discovery many of the Alcotest machine certificates are expired. It is important to carefully scrutinize all of the Draeger certificates to determine if they are current and have not expired. If any of the Draeger certificates are expired, then the breath results could be thrown out.

FIRST OFFENSE (Driving While Impaired)

.08% but less than .10% (per se) or under the influence of alcohol.

Fine: $250 to $400
IDRC: 12 to 48 hours
Jail: Up to 30 days
Loss of driver’s license 3 months

FIRST OFFENSE (DWI)

.10% or higher (per se) or under the influence of alcohol.

Fine: $300 to $500
IDRC: 12 to 48 hours
Jail: Up to 30 days
Loss of driver’s license: 7 months to 1 year
Interlock device: Optional – 7 months to 1 year commencing immediately after the suspension period.

SECOND OFFENSE (DWI)

.08% or higher (per se) or under the influence of alcohol.

Fine: $500 to $1000
IDRC: 48 hours (in lieu of 2 day jail requirement)
Jail: 2 to 90 days
Loss of driver’s license: 2 years
Community Service: 30 days
Interlock device: 1-3 years after the suspension period or 2 years

THIRD OFFENSE (DWI)

.08% or higher (per se) or under the influence of alcohol.

Fine: $1000
Jail: 180 days(Up to 90 days can be served through inpatient program approved by the IDRC)
Note: Jail cannot be served through IDRC, Community Service, or Work Release (SLAP)
Loss of driver’s license: 10 years
Interlock device: 1-3 years after the suspension period or 10 years.

UNDERAGE (21) DWI PENALTIES

Operating with a BAC of .01% or more but less than .08%.

Fine: $250 to $400
Loss of driver’s license: 30 to 90 days
Community Service: 15 to 30 days
IDRC: 12 to 48 hours

MANDATORY ASSESSMENTS

In all DWI cases the municipal court judge must also impose the below referenced mandatory assessments, or additional fines.

Violent Crimes Assessment (VCCB) $50
Safe Neighborhood Funds (SNF) $75
DUI Enforcement Fund $100
DUI Surcharge $100

1. How do the police measure a driver’s speed?

Generally, police use the following methods to catch you speeding:

a. A visual estimate. The officer sees your car and estimates how fast you are going.

b. Pacing. The police officer follows your vehicle at the same speed you are traveling and checks the police car’s speedometer to see how fast you are going.

c. Radar. The officer points a radar gun at your car and it calculates your speed.

d. Laser. The officer points a laser gun at your car and it calculates your speed.

2. Why is the concept of hearsay important in challenging a speeding ticket?

Be aware of any hearsay in a speeding case in Municipal Court. In challenging your ticket, you will want to be aware of a key legal rule called “hearsay” that could help your case. The hearsay rule bars any testimony that quotes information from somebody other than the witness. This is sometimes called the “he said” rule because it forbids a witness from testifying to what somebody else said he saw. There is a huge catch to this hearsay rule.  You must affirmatively object or the judge will allow the testimony.

Here are the most common scenarios in which a prosecutor is most likely to use hearsay evidence to prove a speed violation:

a. An officer testifies about what another driver told her about your behavior.

b. The officer who wrote your ticket testifies about what another officer told him.

c. Where two officers were in a patrol car, and one of them observed your driving. The officer who did not see your driving may not testify to what the other officer told him about your driving.

d. The prosecutor tries to introduce an absent officer’s police report or other written record into court in place of live testimony. If this should occur, then you should simply object on the basis that it is hearsay. If the officer is not present, then the written report is inadmissible hearsay testimony.

3. What is pacing?

Many speeding tickets are issued from the police officer following or “pacing” a suspected speeder and using his or her own speedometer to clock the suspect’s speed. With this technique, the officer must maintain a constant distance between her vehicle and the suspect’s car long enough to make a reasonably accurate estimate of its speed.

The road configuration where you were busted may help prove inadequate pacing. Hills, curves, traffic lights, and stop signs can all help you prove that an officer did not pace you long enough. For example, an officer following your vehicle a few hundred feet behind will often lose sight of it at a curve, not allowing enough distance to properly pace the vehicle. Similarly, if you were ticketed within 500 feet of starting up from a stop sign or light, the officer will not be able to prove that she paced your car for a reasonable distance.

4. How can pacing be inaccurate?

There are many ways that pacing results can be proven to be inaccurate. The farther back the officer, the less accurate the pace for an accurate “pace.” The officer must keep an equal distance between her car and your car for the entire time you are being paced. The officer’s speedometer reading, after all, means nothing if she is driving faster than you are in an attempt to catch up with you. That’s why an officer is trained to “bumper pace” your car by keeping a constant distance between her front bumper and your rear bumper. Pacing correctly requires both training and good depth perception. Moreover, pacing becomes more difficult the farther behind the officer is from your car. The most accurate pace occurs where the officer is right behind you. However, patrol officers like to remain some distance behind a suspect, to avoid alerting a driver who periodically glances at his rear view and side view mirrors.

Therefore, if you know an officer was close behind you for only a short distance, your best tactic in court is to try to show that the officer’s supposed “pacing” speed was really just a “catch up” speed. You will want to ask the officer the distance over which he tailed you. If he admits it was only a short distance, then it will help your case. Your goal is to use the speeds that the officer testified to for his car while he was pacing you to argue that he used his speed while closing in on you as you were driving under the speed limit.

5. Is pacing accurate if it is done during dusk or at night?

Pacing is much more difficult in the failing light of dusk or in complete darkness, unless the officer is right on your tail. In darkness,  the officer’s visual cues are reduced to a pair of taillights. Also, if an officer paces a speeder’s tail lights from far back in traffic, she’ll have trouble keeping the same pair of taillights in view.

6. How do the road conditions affect pacing?

Pacing is easiest and most accurate on a straight road, with no hills, dips, or other obstacles and where the officer can see your vehicle continuously as she follows you. This allows her to keep her car at a constant distance behind you while she paces your speed. Hill, freeway interchanges, dips, curves, busy intersections, and heavy traffic make for a poor pacing environment. All of these obstacles can be used to challenge the accurate pacing of your vehicle.

7. How does radar work?

Radar guns aim an electromagnetic signal at a target vehicle and pick up the return signal reflected off the vehicle. The Doppler effect causes the frequency of the return signal to shift by an amount dependent on the relative speeds of the source of the original signal and the target. Speed radar devices measure the frequency of the reflected signal and compare it with the frequency of the original signal to determine the speed of the target vehicle. A radar beam varies in width comparative to it’s length‑the further the radar’s “zone” extends from the unit the wider it will be. Thus, there must be some evidence in a radar case that the radar was not inadvertently picking up any other moving objects that may also have been within the radar’s “zone.”

8. How is radar used? What are the types of radar equipment?

Although many brands of radar units are in use, they all fall into two types, car mounted units that can be operated while the officer’s vehicle is stationary or moving, and hand‑held radar “guns” often used by motorcycle officers in a stationary position.

9. What are car‑mounted radar units?

Most radar antennas used in patrol vehicles are shaped something like a side‑mounted spotlight without the glass on the front.

They are usually mounted on the rear left window of the police car facing toward the rear. The officer reads your speed on a small console mounted on or under the dash. The unit has a digital readout that displays the highest speed read during the second or two your vehicle passes through the beam. This means that once you go through the radar beam, slowing down does no good.

These units also have a “speed set” switch that can be set to the speed at which the officer has decided a ticket is appropriate. This allows the officer to direct his attention elsewhere while your car travels through the beam. If the speed reading exceeds the “speed set” value, a sound alarm goes off. The officer looks at the readout, then at your car, and takes off after you.

Most modem police radar units can also operate in a “moving mode,” allowing the officer to determine a vehicle’s speed even though her own patrol vehicle is moving. In moving mode, the radar receiver measures the frequency of two reflected signal the one reflected from the target vehicle‑as in the stationary mode‑and another signal bounced or reflected off the road as the patrol vehicle moves forward. The frequencies of these two signals indicate the relative speed between the officer’s vehicle and the target, and the officer’s speed relative to the road. The target vehicle’s speed is then calculated by adding or subtracting these two speeds, depending on whether the two vehicles are moving in the same, or opposite, directions. This calculation is done automatically, by the electronics in the radar unit.

10. What are hand-‘held radar units?

Hand-held radar guns are used most often by motorcycle officers. A radar gun is simply a gun‑shaped plastic mold containing the transmitter, receiver, and antenna. The antenna is normally mounted at the front of the gun, and a digital speed readout is mounted on the back. A trigger is included, allowing the officer to activate the radar beam only when she sees a car that appears to be traveling fast enough to spark her interest.

11. How can radar readings fail?

Contrary to many boastful municipal prosecutors, new technology has not completely ironed out problems known to cause radar malfunctions. Most screw ups result from the radar’s operation in real-world conditions, which are often far less than ideal. Moreover, human error can also cause radar devices to fail.

The best way to point out all the pitfalls of radar readings is to subpoena the radar unit’s instruction manual. The manufacturer will usually include a page or two on inaccurate readings and how to avoid them. If you study the manual, you may find a way to attack its reliability in court using the manufacturer’s own words. It is important to make sure that the manual is complete. Police departments have been known to tear out pages that discuss common radar screw ups from the radar manual before responding to a subpoena. So be sure to look to see if any pages are missing and, of course, point out any gaps you discover.

12. What are the common malfunctions and sources of inaccurate readings?

a. More Than One Target

Radar beams are similar to flashlight beams. The farther the beam travels, the more it spreads out. This simple fact often results in bogus speed readings, since it’s common for a spread‑out beam to hit two vehicles in adjacent lanes

It is very possible that the officer obtained a radar reading from another vehicle. At trial, ask the officer if his radar unit was on automatic. The chances of registering the speed of the wrong car go way up when an officer, points his radar unit at a highway and puts it on the automatic setting. This is true because the officer isn’t pointing his radar unit at a specific vehicle. Therefore, the beam angle width means the unit could be picking up one of several cars going the same, or even opposite, directions. In this case, ask the officer whether there was other traffic in either direction. If his answer is “yes,” ask him which direction. If there was traffic in the direction opposite you, follow up and ask him whether the unit responds to traffic in both directions. Either way, if there was other traffic, be sure to raise the possibility in your closing argument that the radar unit clocked the wrong vehicle.

b. Wind, Rain, and Storms

Although metal reflects radar beams better than most surfaces, pretty much any material will reflect radar waves to some extent. In fact, on windy days, windblown dust or even tree leaves are often read by radar devices. And sometimes these spurious readings can be attributed to your vehicle.

Windblown rain can also reflect enough energy to give false signals, particularly if the wind is strong enough to blow the rain close to horizontal. The more rain or wind, the more likely an erroneous radar reading will result. Pre-thunderstorm atmospheric electrical charges can also interfere with a radar unit. That’s because electrically charged storm clouds can reflect a bogus signal back to the radar unit even though they are high in the sky. If such a storm cloud is being blown by the wind at sufficient speed, a false radar reading may result.

c. Calibration Problems

Every scientific instrument used for measuring needs to be regularly calibrated to check its accuracy. Radar equipment is no exception. It must be checked for accuracy against an object traveling at a known (not radar determined) speed. If the speed on the radar equipment matches the known speed, the unit is properly calibrated. In practice, the best way to do this is to use a tuning fork as the moving object. While this may seem a far cry from a moving car, the use of a tuning fork is scientifically sound; tuning forks, when struck against a hard object, vibrate at a certain frequency which we hear as an audible tone.

It is time-consuming to use a tuning fork as a calibration device. So a second, but far less accurate, method has been developed to check the accuracy of radar units. This consists of flicking on the “calibrate” or “test” switch built into the radar unit itself and seeing if it calibrates properly. The unit reads a signal generated by an internal frequency generating device, called a “crystal.” The resulting number is supposed to correlate with a certain predetermined speed.

Unfortunately, there is a big problem with this sort of calibration testing. There are two types of circuits in the unit, frequency circuits and counting circuits. Flicking the calibration switch tests only the counting circuits. In short, if the frequency circuit is not calibrated, the radar unit may well be inaccurate.

The fact that an internal “calibrate” test isn’t a substitute for a tuning fork explains why it’s so important in any traffic trial involving the use of radar to cross‑examine the officer and see whether she really did use a tuning fork before you were ticketed. Typically, they are required to use the tuning fork at the beginning and end of their shifts.

d. Pulling You Over As Part of a Group of Cars

In situations where several cars proceed over the speed limit, some especially any zealous officers will take a radar reading on the “lead” vehicle and then pull it over, along with one or two followers. In court, the officer will try to use the reading for the first vehicle as the speed for everyone else.

13. Is the laser accurate in measuring a driver’s speed?

Laser devices, also known as LIDAR (light distance and ranging), use a time/distance calculation to measure speed. The devices aim a narrow band of light at the target vehicle and measure the time it takes to receive the reflected light. Because the speed of both the original light pulse and its reflection are traveling at the same speed (the speed of light), differences in the time it takes the transmitted light to strike the target vehicle and return can be used to calculate the speed of the vehicle. Unlike radar, lasers can pinpoint specific vehicles in heavy traffic.

Laser detectors are the most recent addition to the traffic officer’s arsenal of speed measuring devices. Built to look and act like a hand-‘held radar gun, a laser detector uses a lasered powered beam of laser light that bounces off the targeted vehicle and returns to a receiver in the unit. The unit then electronically calculates the speed of the targeted vehicle. Laser detectors are supposedly more accurate than radar units.

One advantage for police officers of the laser gun is that the light beam is narrower than a radar beam, meaning that it can be more precisely aimed. This is true even though laser detectors use three separate beams, because the combined width of the three beams are still much narrower than a single radar beam at the same distance. This technology reduces, but does not eliminate, the chance that the speed of a nearby car will be measured, instead of the speed of the car at which the operator aims the gun.

14. Does the officer have to be certified to operate radar?

Most law enforcement agencies have some kind of certification process that must be completed before an officer is allowed to use radar. This may be mandated by law or departmental policy. Federal guidelines spell out certain recommended minimum standards for radar operators but these are only recommendations, not requirements. A motorist may ask if an officer possesses a certificate but it is probably rare that an agency will require the officer to present it in the field.

15. How much does the officer have to know about how the radar works?

The officer needs to know how to setup, test, operate, and interpret the readings obtained from radar. He also needs to understand the basic principles of how the radar works. He does not need to know how to build or repair the unit nor does he have to understand all the electronic circuitry any more than the average homeowner needs to know how to build or repair a television set in order to use it.

16. Does a vehicle’s shape and size affect its ability to be clocked with radar?

Yes. It stands to reason that a smaller target will need to be closer to the radar in order to be clocked. An aerodynamically shaped vehicle will present a slightly smaller target for the radar and will likewise need to be closer to the radar before being clocked.

17. Can an officer issue a speeding ticket without radar?

Yes. New Jersey case law has consistently held that a trained officer can visually estimate the speed of a vehicle with some degree of reliability. Speed estimations are usually a part of radar operator training and some officers become quite skilled at this. There may be situations when an officer sees what he knows to be a speeder traveling well over the posted limit but the radar is not positioned to obtain a reading, or maybe he has no radar at all. This does not prevent him from stopping the motorist and issuing a speeding ticket.

18. Can other radio transmitters interfere with the radar?

Yes, in certain instances they can, but this is relatively rare. This can vary from one radar to another and is dependent upon the frequency of the radar and the strength of the signal source.  Most modern radars have a built in “RF” (radio frequency) indicator which will automatically blank the radar’s readout screen during activation by a strong RF signal that exceeds a predetermined threshold level. Due to their higher power outputs, TV and commercial radio stations can cause interference at close range. Cell towers, ham radio repeaters, personal cell phones, wireless Internet and other devices are relatively low powered and aren’t likely to cause interference, even at very close range. If by chance they should, the radar will temporarily go blank and readings will not be possible.  Radar manufacturers know their products are going to be used in a radio rich environment in a police vehicle so it stands to reason their radars will be specifically designed to work in that type of environment. A rule of thumb is, if your cell phone will function without interference, so will the radar.

19. Are there other sources that can interfere with radar?

Yes. Nearby electrical lines, fluorescent lighting, even the patrol car’s own heater blower motor can cause interference.  These problems are addressed in training and a good radar operator will immediately know when these problems are present.  On some older radars these sources can cause fake readings on the radar while the newer radars are designed to eliminate most of these. Nonetheless, the trained radar operator is taught to watch for these problems and isn’t likely to misinterpret them.

20. How many targets can the radar clock at once?

Some radars can clock several targets simultaneously while others are limited to one at a time. Either way it is up to the operator to properly identify which target is being clocked before initiating a traffic stop.

21. Does the radar tell the officer which vehicle it is clocking?

No. Target identification is the ultimate responsibility of the radar operator. Keep in mind this does not apply to LIDAR where the laser is aimed at a specific vehicle. LIDAR target identification is very accurate

22. How does the officer know which vehicle he is clocking?

The officer is responsible for visually verifying the target vehicle. Cases of mistaken identity are possible if the officer is poorly trained or inexperienced. The more vehicles within the range of the radar, the more difficult target identification becomes. Some new radars have a feature that tells the officer if the target is closing or going away.

23. What is the range of police radar?

This will vary depending on the model of radar, the volume of traffic present, the terrain, and the size of the targets being clocked. Some radars are capable of clocking vehicles over a mile away. The author has used older model radars that under the right conditions could track vehicles at almost two miles.

24. How does the officer go about checking the radar’s accuracy?

The procedures may vary between models. Tuning forks are used to check the radar readings and most radars also have some form of an internal calibration test. These tests are customarily performed at the beginning of a shift and sometimes more often. The tuning forks simulate the Doppler shift of a vehicle at a known speed. Most radars also have means of insuring that the digital display has no burned out elements which could cause a misreading of the numbers. In addition to these tests an officer can check the radar by driving and verifying the indicated speed against a certified speedometer or using it side by side with another radar to ensure they both read the same speed on the same target. Many newer radars also do periodic automatic self tests.

25. Does the radar have to be re-calibrated periodically?

Not unless it is required by department policy or by law. Radars contain solid state electronics and have no higher failure rate than other similarly engineered electronic devices. Most radars will simply cease to function when something goes wrong. In those few instances where a radar continues to work when a malfunction exists the officer operator should recognize that a problem exists and take the unit out of service for repair or replacement.

26. Does the weather affect the radar?

Yes, but usually not to the extent some people might think. By the very nature of the radar’s location inside a police unit they are built to withstand a great deal of shock and temperature and humidity variations. Precipitation may reduce the effective range of the radar by causing the signal to scatter and break up more quickly than in clear air but the accuracy of any reading obtained will be unaffected.  Extremes of heat or cold might have a slight temporary effect on the accuracy of the tuning forks used to test the radar while the radar itself remains accurate.

27. When I was pulled over, the officer didn’t let me see the radar reading. Is this a valid ground for a dismissal?

No. The officer is not required by law to show the radar readings to a ticketed driver. This issue has been tried in the courts and the courts have decided that it is not relevant and the officer does not have to show you. Most officers being reasonable will show you the reading if it is possible for them to do so.

At times the officer will not want to, or be unable to because of any number of reasons. The officer may feel it is not safe for you to get out of your car stand on the highway as a pedestrian to look at the reading, especially if this was on a major highway.

28. I might have admitted my speed to the officer, will he use it against me in court?

For a speeding trial the officer is not going to use any statements against you in court. They will not use this against you or tell the Municipal Court judge what you may have said. It’s not relevant to the case and the judge will not want to hear this evidence.

29. Can I dispute the speeding ticket by saying that my speedometer was off?

It is not a defense to the charge of speeding to say that your speedometer was not working. A speedometer is not a required piece of equipment in a motor vehicle. You are always responsible for the speed of your vehicle. It is not a defense to say you didn’t know or you did it by mistake.

30. Do radar or laser make mistakes? Is there a defense to the speeding charge?

Any instrument can make mistakes. Radar and laser are accurate to plus or minus one percent, so if you were stopped at 100km/h the speed may have been 101/km/h or 99km/h.  The operator can make mistakes too but you have to know the questions to ask in a trial. In a speeding trial an officer has to cover approximately thirty points to prove the case. If the officer can do this properly no one can win the case, and the Municipal Court judge has to enter a conviction. Speeding ticket trials are won on technicalities presented properly before the court.

Speeding trials are won from knowing all the issues about the operation of radar, qualifications together and disputing the essential elements of a speeding charge. The officer must provide the evidence to the court without a reasonable doubt.

If you don’t know how the radar works, the qualifications required by the officers, testing procedures required, rules of evidence, what a leading question is and what is hearsay evidence you are not qualified to run a trial and defend yourself.

Speeding trials are based on technical aspects of procedure and law. If you don’t know all of the issues, you will be convicted.  You need to have experience and knowledge to conduct a speeding trial. If you don’t know what a filing date is, the proper set fine, or the service boxes, then you’re not qualified to defend yourself. Remember the officer probably has given evidence before the court hundreds of times, how many speeding trials has the person who received the ticket run.

The police in New Jersey frequently use roadblocks to bust DWI drivers. The best way to contest a DWI in a roadblock bust is to ascertain if the roadblock was “reasonable” under a traditional Fourth Amendment analysis. It is now settled that the stopping of a motor vehicle at a roadblock, even for a brief period of time, constitutes a seizure within the meaning of the Fourth Amendment of the Constitution.

Therefore, in a roadblock DWI case, the constitutionality of the roadblock must be attacked. In determining the constititutionality of a roadblock, the court will analyze the following factors:

1. The degree of discretion, if any, left to the police officer in the field;

2. The location designated for the roadblock;

3. The time and duration of the roadblock;

4. The standards set by superior officers;

5. Advance notice to the public at large;

6. Advance warning to the individual approaching motorist

7. Maintenance of safety conditions;

8. Degree of fear or anxiety generated by the mode of operation;

9. Average length of time each motorist is detained;

10. Physical factors surrounding the location, type, and method of operation;

11. The availability of less intrusive methods for combating the problem;

12. The degree of effectiveness of the procedure; and

13. Any other relevant circumstances which might bear upon the test.

In summary, the best way to fight a DWI case when the driver is stopped in a roadblock trap is to fight the constitutionality of the stop. Defense counsel confronted with a roadblock should demand in discovery all of the information leading to the establishment and conduct of the roadblock. Defense counsel also should be vigilant to make sure that all of the guidelines required render the “seizure” during the roadblock reasonable under the New Jersey Constitution have been fully adhered to by the police.

1. THE “PER SE LIMIT” WAS LOWERED.

On January 20, 2004, New Jersey revised their drunk driving laws. The major change to New Jersey DWI law is that it lowers the blood alcohol level in order for a driver to be found guilty of a DWI related offense. The BAC level was reduced from .10% to .08%. This amendment is known as “Florence’s Law.” It was enacted by the New Jersey Legislature largely in response to federal legislation that conditions the receipt of highway safety funds upon a voluntary adoption by the states of a minimum of .08% BAC level to establish the offense of drunk driving.

The main purpose of “Florence’s Law” is to revise the key element of the per se violation for drunk driving by lowering the BAC level from .10% to .08%. This means that evidence of a driver having a BAC of at least a .08%, based upon a reliable chemical test performed within reasonable period of time after the operation of a motor vehicle, is sufficient evidence to constitute the offense of drunk driving.

Basically, the new law creates two types of DWI cases. A person found guilty of having a BAC that ranges from at least .08% but less than .10% is guilty of the offense of driving while impaired. The license suspension for driving while impaired is significantly lower than they were under the old New Jersey DWI laws. A person convicted of driving while impaired receives a license suspension of only 3 months. Meanwhile, a driver who is convicted of a standard DWI, and who also has a BAC of .10% or higher, will receive a driver’s license suspension of 7 months to 1 year.

In summary there are some pros and cons to the revised New Jersey DWI laws. The negative aspects of the revised DWI laws are that it increases a person’s exposure to being convicted of a DWI related charge. Under the old DWI system, many drivers would have completely beaten the DWI charge, if their lawyer could prove that their respective BAC was below the per se level of .10%. A driver only has to consume a few alcoholic beverages for them to register a BAC of at least .08%. Moreover, the new law adds an additional month of license suspension for a DWI charge. Under the old law, the standard license suspension for DWI was 6 months. However, the revised DWI laws increases the minimum license suspension for a DWI to 7 months.

The benefits of the new law are that it gives the DWI driver many new options to resolve their case. Many courts are more than willing to downgrade a DWI charge to a driving while impaired offense. Municipal courts are swamped and they are not really equipped to handle and try many DWI cases. Nothing pleases a municipal court judge and their court administrator more than to resolve a DWI case. The municipal courts are carefully watched by the AOC, and they are always pushing to resolve DWI cases. Thus, under the new law, a driver can receive a 3-month suspension for the driving while impaired charge. However, under the old DWI laws, the driver would have received a license suspension of at least six months.

SUMMARY

The revised DWI laws create two tiers of offenses. The first offense occurs when a driver has a BAC of at least .08% but not greater than .10%. This type of offense is called driving while impaired or driving under the influence. A driver who has a BAC of .10% or higher is guilty of a standard DWI charge.

The license suspension for a driving while impaired conviction is 3 months. The license suspension for a DWI charge is 7 months to 12 months.

The major drawback to the new law is that it lowers the BAC level for a driver to be guilty of a DWI related charge. In the past, in many cases a driver with a borderline BAC could have beaten the DWI charge completely. However, under the revised DWI laws, the municipal court has another option to find the driver guilty of driving while impaired. The other drawback is that a conviction of driving while impaired conviction counts as regular prior DWI offense for sentencing purposes. This is especially important if the driver is convicted in the future for another DWI charge. Finally, a conviction for driving while impaired also has the same amount of surcharges as a regular DWI charge. A person who is convicted of a driving while impaired charge will still have to pay a total of $3,000 worth of DMV surcharges.

2. INCREASE IN THE TIME OF LICENSE SUSPENSION.

The New Jersey legislature increased the range of license suspension for a DWI charge when the BAC reading is .10% or higher. Now a DWI driver can receive a license suspension of 7 to 12 months. Under the prior laws, the DWI driver faced a suspension of 6 to 12 months.

3. A THIRD TIME DWI OFFENDER IS NOW GOING TO SPEND SOME SERIOUS TIME IN JAIL.

If a DWI driver is faced with a third offense, then he or she must retain a very experienced DWI lawyer. Under the prior laws, a third time DWI offender would most often receive a jail term of 180 days. However, a crafty lawyer often could find a way to keep the DWI driver out of jail by having him serve his jail term in a rehab center. Moreover, there was a provision in the old laws that permitted the DWI driver to perform 90 days of community service instead of serving time in the local county jail. For better or worse those days are over.

The New Jersey legislature now has a mandatory 90 day jail term for a third time DWI offender. A third time DWI offender can still serve the remaining 90 days of their term in a rehab center. However, there is no escaping the 90-day jail term in the county jail. This can be quite a shocking experience for a person who has never been to jail before.

4. HARSHER PENALTIES FOR REFUSAL TO SUBMIT.

Under the old laws, a driver who refused to submit to a breath test faced a license suspension of 6 to 12 months. The new laws have increased the sentence for a refusal charge to 7 to 12 months.

This is a sample of the most important DWI cases decided in New Jersey. If you have specific questions about any of these cases and how they may apply to your own case, please call me for an immediate free consultation.

“Allowing” DWI

STATE v. MICHALEK, (Law Div. 1985)
Here, the court held that a defendant could not be convicted of crime unless he had proof that he knew, or reasonably should have known, that operator was intoxicated or had blood-alcohol concentration of .10% or more.

Arrest

STATE v. LIBERATORE, (Law Div. 1996)
After arresting defendant for resisting arrest following improper left turn, police officer’s entry into porch doorway to regain custody of defendant was reasonable; defendant was in sight of officer, and entry into porch doorway was continuation of overall arrest sequence.

Bicycles

STATE v. MACHUZAK, (Law Div. 1988)
Here, the court held that the DWI statute did not apply to the operation of non-motorized pedal-type bicycle.

Blood Testing

Under both federal and state law, the State may force a suspect to a undergo a blood test to determine the amount of alcohol in his blood. Schmerber v. California, supra, 384 U.S. at 770-71, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920; State v. Stever, 107 N.J. 543, 558, 527 A.2d 408 (1987), cert. denied, 484 U.S. 954, 108 S. Ct. 348, 98 L. Ed. 2d 373 (1987); State v. Dyal, 97 N.J. 229, 238-39, 478 A. 2d 390 (1984); State v. Macuk, 57 N.J. 1, 14, 268 A. 2d 1 (1970). “[A]cquiescence is not legally significant or necessary.” Macuk, supra, 57 N.J. at 15, 268 A.2d 1. “Of course, the sample should be taken in a medically acceptable manner at a hospital or other suitable health care facility.” Dyal, supra, 97 N.J. at 238, accord Schmerber, supra, 384 U.S. at 771-72, 86 S. Ct. at 1836, 16 L. Ed.2d at 920 (deeming a reasonable manner to include the taking of blood by a physician in a hospital “according to accepted medical practices”).

STATE v. RAVOTTO, (App. Div. 2001)
This case held that the police cannot use unreasonable force to obtain a defendant’s blood sample. If an individual vehemently objects to giving blood, it cannot be extracted against a persons will. However, in this type of situation, the driver will almost always be found guilty.

STATE v. BROADLEY, (Law Div. 1992)
In this case, the court held that a local police department must establish reasonable procedures to provide DWI suspects an opportunity to exercise their right to an independent blood test. Consequently, the defendant was successful in suppressing his very high breathalyzer results.

STATE v. ETTORE (App. Div. 1988)
The court held that statutory right of motorist tested for blood alcohol by police to have independent test performed was not violated by police in refusing to transport motorist to hospital for test, refusing to permit motorist to leave by taxi unaccompanied by responsible escort, pursuant to state police policy, and not releasing motorist until her son picked her up, even though, when motorist arrived at emergency room of hospital, hospital refused request for testing because there was “no medical reason” for testing.

STATE v. HICKS (App. Div. 1988)
refusing to allow defendant to make telephone call would not require suppression of breathalyzer results unless defendant established, by preponderance of believable evidence, that call was sought for purpose of arranging or discussing possibility of independent test and that independent test could have been conducted in reasonable period of time so as to produce relevant or probative evidence.

Breathalyzer (Admissibility)

For the results to be admissible, the State must establish that the test was properly administered, and proof of proper administration “includes full proof that the equipment was in proper order, the operator qualified and the test given correctly….” State v. Johnson, 42 N.J. 146, 171, 199 A.2d 809 (1964). See also Romano v. Kimmelman, 96 N.J. 66, 90, 474 A. 2d 1 (1984).

Breathalyzer (Extrapolation)

STATE v. DOWNIE,(NJ 1990)
Defendants in driving while intoxicated cases are not permitted to challenge blood alcohol determinations made by breathalyzer by taking results and extrapolating to produce estimate of content at time of arrest. Moreover, this case held that the court should always consider the lowest reading of bot BAC samples.

STATE v. TISCHIO (NJ 1987)
This case killed the best DWI defense of all time “extrapolation.” This case held that the extrapolation from results of breathalyzer test to demonstrate that defendant’s blood-alcohol level was less than legal 0.10% at time he was actually driving is not admissible as probative evidence in prosecution for statutory offense of driving under the influence.

Breathalyzer (Reliability)

The NJ Supreme Court has steadfastly held that the breathalyzer “reads alcohol with unimpeachable accuracy” and “is unsurpassed in its combined practicality and usefulness.” State v. Downie, 117 N.J. 450, 468-469, 569 A.2d 242 (1990), cert. denied, 498 U.S. 819, 111 S. Ct. 63, 112 L. Ed.2d 38 (1990). See also State v. Tischio, 107 N.J. 504, 527 A.2d 388 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed.2d 855 (1988); Romano v. Kimmelman, 96 N.J. 66, 474 A.2d 1 (1984); State v. Maure, 240 N.J. Super. 269, 277-279, 573 A. 2d 186 (App. Div.1990).

STATE v. LENTINI (App. Div. 1990)
Here me per se offense of driving while intoxicated was established by 0.10% reading from properly operated and properly functioning breath testing machine. Moreover, this case kills the Slinger defense. In many case, the courts will take notice of the Slinger defense, that basically means that there is a .01 margin of error in the breathalyzer tests.

STATE V. SLINGER
281 N.J. Super. 538 (App. Div. 1995), the Appellate Division expressly held that there was a .01 margin of error in a breathalyzer reading. This is perhaps the most important case in NJ DWI law. In close cases such as 1.0 BAC or 1.1 BAC readings, then some judges will give the DWI driver a Slinger benefit of the doubt. This means that the court will deduct .01 from a BAC reading. The rational for the Slinger holding that readings are slightly off because of simulator solution depletion of the breathalyzer machine after several usings.

Breathalyzer Inspection Certificates

STATE v. SANDSTROM, (App. Div. 1994)
This is a very technical case. In all DWI cases, the main goal is to attack the breathalyzer machine. Here, the court held that evidence of blood alcohol level of .14% was admissible, even though breath analysis machine had not been certified within previous 30 days, and machine was found to be inoperable 13 days after test was conducted on defendant.

Many times the local police departments will not have their breathalyzer machines property certified. A good lawyer will pick up these mistakes. Some judges go by the book, and will acquit the defendant if there are mistakes. However, some judges will do whatever they can to convict a DWI driver, even if the certificates and the inspections are lacking.

In this case, the court held that bi-monthly inspections were all that was required to insure the instrument was in proper working order.

STATE v. SAMAREL,(App. Div. 1989)
In a DWI case, the prosecutor must supply a DWI driver with an after-certificate. An after-certificate is a form that verifies that the State Police has come to the police station, and he has verified that the breathalyzer machine is in proper working condition.

Here, the court held that although presenting at trial a post-test certification that a breathalyzer is in proper working order is the preferred practice, a test result may be admissible without a post-test certificate if there is a pre-test certification made within a month before the test that the machine was in proper working order and there is no evidence that the machine gave inaccurate results when used for the test.

Discovery (Admissibility)

STATE v. MATULEWICZ, (App. Div. 1985)
This case deals with the hearsay exception to producing lab reports in a marijuana case. Here, the court held that a state police chemist’s laboratory report that identified controlled dangerous substance as marijuana was inadmissible under public-records exception to hearsay rule, wherein the chemist was not produced as a witness.

Discovery Provided by the State

STATE v. YOUNG,(App. Div. 1990)
In this case, the court held that the prosecutor does not have to produce the ampules from the same batch used in defendant’s breathalyzer tests. The court held that this is not part of discovery in a DWI case.

STATE v. FORD, (NJ 1990)
This case deals with what type of evidence the prosecutor must supply a DWI lawyer. Many times the prosecutors are lazy and they do not want to provide reasonable discovery to a DWI defendant. This case spells out a prosecutor’s duty to provide discovery in a DWI case.

Defendants’ discovery in DWI cases is limited to those relevant items, enumerated by statute, which there is reasonable basis to believe will assist defendant’s defense; furthermore, court is permitted for good cause shown to limit discovery even if otherwise discoverable. State is not routinely required to supply defendants with manuals for operation of breathalyzer used, as defense counsel seeking such manual may inspect or copy it through arrangements with prosecution under rule, thereby having the manual for general use in the attorney’s practice.

For purposes of production in DWI cases, requiring routine production of entire repair record for breathalyzer instrument or video equipment, or coordinator’s certificate or similar documents without appropriate time limitations would be unreasonable; 12-month limitation should ordinarily suffice.

Under general demand for discovery in DWI case, State should provide full identification of breathalyzer used, date it was first placed in service by State, type of breathalyzer used, including manufacturer, model number and results of coordinator’s testing of breathalyzer for approximately one year to include next testing after defendant’s test, time of administration of test, and results and all reports and relevant documents signed by defendant or pertaining to his condition of sobriety including blood and urine tests.

Drinking After Operation of Vehicle (“Glove Box Defense”)

Error on Ticket

STATE v. LATORRE, (App. Div. 1988)
In this case, the court held that a defect in a DWI summons which lacked signature of issuing officer was not fatally defective. Basically, a DWI driver can use a flaw in a DWI ticket to beat the charge. DWI courts have very liberal and they often permit the prosecutor to amend the ticket if there is an error on it.

STATE v. RYFA, (Law Div. 1998)
This case stands for the principle that mistakes in summons can be fixed for DWI cases. Here, a DWI summons that was issued erroneously, and it listed the place of offense as town of West Orange, even though offense occurred in East Orange. In this case, the court held that the Court rules gave municipal court power to both amend complaint and transfer jurisdiction, and correction of error neither prejudiced defendant nor created potential for double jeopardy.

Evidentiary Issues

STATE v. GARTHE,(NJ 1996)
This case is a very important case. Here, the court ruled that breath test inspector’s inspection certificates (BTIIC’s) are admissible in DWI trials even thought they constitute hearsay. The court held that the BTIIC is admissible according to t business or official record exceptions to hearsay rule.
_ Horizontal Gaze Nystagmus test (HGN)

STATE v. DORIGUZZI, (App. Div. 2000)
This case basically held that the horizontal gaze nystagmus test (HGN) is a not a scientifically reliable to convict a person for DWI. However, the horizontal gaze test can still be used by the cops to establish probable cause to arrest a person for DWI.

Involuntary Intoxication

STATE v. HAMMOND, (NJ 1990)
Here, the court held that involuntary intoxication is not a defense to a DWI charge.

Jury Trial

The New Jersey Supreme Court has expressly rejected the argument that a defendant facing conviction as a third time offender of N.J.S.A. 39:4-50 is entitled to a jury trial. State v. Hamm, 121 N.J. 109, 111, 577 A. 2d 1259 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed.2d 466 (1991)
STATE v. ELLIS, (NJ 1990) offenses were not constitutionally “serious,” and thus, no jury trial was required.

Miranda – Rights Requirement

STATE v. NEMESH, (App. Div. 1988)
In this case, the court denied a suppression motion of a statement made by the driver. Here, the copy asked the driver upon his arrival at scene of accident as to who was operating involved vehicle in the accident. The court held that this did not constitute custodial interrogation, for purpose of requirement of Miranda warnings.

Miscellaneous (Promise to Dismiss)

STATE V. MARSH, (App. Div. 1996)
In this case, the court held that a police officer has no authority to bargain with DWI drivers. Therefore, the court held that a cop has no power to promise dismissal of a pending DWI charge, in exchange for Defendant’s cooperation in unrelated drug investigation.

Operation of Vehicle

STATE v. GARBIN, (App. Div. 1999)
This is another control of the vehicle question. Remember operation is a great loophole for DWI defense. Many times the prosecutors overlook this element of DWI, especially when they have a hundred or so traffic ticket defendants bugging them all day.

Here, the court held that the cops were justified to enter the defendant’s garage to perform their community caretaking functions. Therefore, the court held that the defendant could be convicted based on operation of vehicle in garage of private residence.

STATE v. MULCAHY. (NJ 1987)
This case is really on point for operation cases. An issue in many cases is whether the prosecutor can prove that the DWI driver actually operated the vehicle. Here, the court held that a DWI driver who was clearly drunk, who entered his car, started to put his keys in the ignition and was prevented from doing so by an arresting officer, was operating the car. Thus a person can be convicted for DWI as long as they have an intent to use the vehicle, when they are legally intoxicated. Thus is a cop stops a driver from driving, when they are legally intoxicated, then this still constitutes a DWI.

STATE v. DiFRANCISCO, (Law Div. 1988)
This is a control case. Here, the DWI driver was still convicted when he was found slumped behind steering wheel of truck which was sitting partially in ditch, with the keys in the ignition and the engine warm, was insufficient to permit inference that defendant had driven the truck while intoxicated. Remember, the cops to not have to arrest you while you are driving to be convicted of DWI. The prosecutor just has to prove that you had control of the vehicle.

STATE v. SWEENEY, (NJ 1973)
This is also an “intent to drive case.” Here, the court sustained the conviction of a person who, in an intoxicated condition. Here, the driver entered a stationary vehicle, on a public highway or in a place devoted to public use, he turned on the ignition, he started and maintained the motor in operation, and he remained in the driver’s seat behind the steering wheel, with the intent to move the vehicle.

STATE v. DALY, (NJ 1973)
This case deals with the State’s burden to prove “intent” to drive. Here, the defendant was found seated in the driver’s seat of an automobile parked in the parking lot of a tavern. The driver was intoxicated and asleep; the car lights were off but the motor was running.

The driver told the arresting officer that he had no intention of driving and had started the car only to keep warm. The driver testified that he was “sleeping off” his intoxication. The Court held that the proofs did not prove that he was “operating” his car: “In the instant case, defendant denied any intent to move or drive his car until he had sobered up and, contrary to the State’s contention, there was no evidence from which any such intent could be inferred beyond a reasonable doubt.”

STATE v. STIENE, (App. Div. 1985)
Here a DWI driver was still convicted of DWI, even though he was not driving the vehicle when he was arrested. The DWI driver was only pushing the car on the highway when he was stopped and arrested. The main point in this case is that the driver had control of the vehicle, and this was sufficient to sustain a DWI conviction.

Physical Testing – No Breath Testing

STATE v. OLIVERI, (App. Div. 2001)
This case stands for the principle that a DWI driver can be convicted on observations, and not solely on the breathalyzer results. Here the DWI driver was convicted of DWI without Breathalyzer testing in this case.

Here the cop testified that defendant’s eyes were watery and speech was slow and slurred, he had to make a few requests for defendant to exit vehicle, defendant admitted drinking two beers, when asked to walk heel-to-toe for nine steps up and nine steps back, defendant took 15 steps up and 19 steps back without touching heel-to-toe, had difficulty with one-legged stand, miscounted by thousands from 1,000 to 30,000, and when attempting to recite alphabet from D to S, went to V and missed several letters in between.
Remember, the prosecutor has two ways to conviction a DWI driver. A DWI driver can be convicted on a the breathalyzer results, or by the cops observations.

Plea Negotiations

STATE v. HESSEN (NJ 1996)
In this case, the New Jersey Supreme Court thoroughly discusses the absolute ban against plea negotiations in all DWI case. This is a bizarre ruling. However, it is illegal to plea bargain a DWI case. Therefore, if you want to fight a DWI, then you must be prepared for a trial.

Probable Cause – Blood Testing

STATE v. O’LOUGHLIN, (App. Div. 1994)
Only in extreme cases do the cops take blood for BAC testing. Usually, blood testing is only given when there is an accident involved. In this case, the court held that the observation of the DWI driver upon arrival at hospital and two empty party cups and two crushed beer cans in her car did not provide probable cause for involuntary seizure of her blood. The court held that the DWI driver did not demonstrate any evidence or physical manifestation of having consumed alcohol.

Probable Cause To Stop

STATE v. CRYAN, (App. Div. 1999)
stopping defendant because he failed to proceed for five seconds after a red light turned green was not justified on a community caretaking basis. Therefore, the stop was considered to be invalid.

STATE v. LOCURTO, (App. Div. 1997)
This case is great to use when a DWI driver is stopped for a bogus motor vehicle violation, to justify a cops fishing expedition to find drunk drivers. It is common knowledge, that cops often make bogus traffic stops, in the hopes of finding drivers who may be guilty of more serious charges.

In this case, the court held that the State failed to prove that police officer had articulable and reasonable suspicion that driver was speeding to justify stop of automobile, despite officer’s testimony that defendant’s vehicle was traveling at high rate of speed in opposite direction based solely on his impression. The court held that the officer’s testimony was too vague, speculative and arbitrary.

STATE v. WASHINGTON, (App. Div. 1997)
This is a search case. Here the copy had an objectively reasonable basis to stop defendant’s automobile, pursuant to community caretaking function, when the defendant was driving under speed limit and vehicle was weaving.

Refusal to Perform Field Sobriety Test

STATE v. BRYANT, (App. Div. 2000)
Here, the court held that a driver’s refusal to perform any field sobriety tests may be considered as evidence in favor of a conviction for a DWI.

Refusing to Take Breath Test

Breath samples are a non-testimonial form of evidence. State v. Macuk, 57 N.J. 1, 14, 268 A.2d 1 (1970). Therefore, a defendant does not have a Fifth Amendment right to consult with an attorney before taking the test, nor does a defendant have a right to have an attorney present when the test is performed. State v. Leavitt, 107 N.J. 534, 536, 540, 527 A.2d 403 (1987).

STATE v. DiSOMMA (App. Div.1993)
Here the court held that a prior violation of statute prohibiting refusal to take breathalyzer test can not serve as first offense for purposes of second offender status for driving while under the influence. The court further held that offenses of driving while under the influence and refusal to take breathalyzer test were not the same or interchangeable violations.

STATE v. WIDMAIER, (NJ 1999)
For purposes of implied consent statute, once a defendant says anything except an unequivocal “yes” to the officer’s request that he take breathalyzer test, after the officer has informed the defendant of the consequences of refusal, the defendant cannot legally cure the refusal.

Roadblock

STATE v. FLOWERS,(Law Div. 2000)
Here the court held that a roadblock to check for stolen vehicles does not violate the Fourth Amendment.

STATE v. HESTER, (App. Div 1990)
Here the court held that a sobriety roadblock are constitutional. The court further held that the police do not have to provide an opportunity for a DWI driver to avoid a checkpoint or refuse to participate.

Sentencing Issues

STATE v. FIELDING, (App. Div. 1996)
This is a very important case. Basically, if there is a 10 year gap between DWI convictions, then the DWI driver is sentenced one level below.

Here, the DWI driver two prior DWI convictions occurred in 1981, more than ten years before the present charges. Pursuant to N.J.S.A. 39:4-50(a), the imposition of enhanced penalties for those previously convicted of DWI does not apply “if the second offense occurs more than 10 years after the first offense.” In that situation, “the court shall treat the second conviction as a first offense for sentencing purposes.” N.J.S.A. 39:4-50(a).

However, the statute goes on to provide that, “if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.” Id. Thus, had Fielding consented to a breathalyzer test and been convicted for DWI, he would have been treated as a second offender because his second DWI conviction occurred in 1981.

STATE v. LAURICK,(NJ 1990)
This case is great for sentencing a DWI person on a second or third time basis. Basically, this case holds that a prior uncounseled DWI conviction can’t be used to sentence a person to jail, if they did not have a lawyer for the first time DWI charge. Many courts use this case to avoid sending second and third time DWI offenders in jail. The court will still sentence the DWI driver as a second or a third time offender. However, the court often will use the Laurick case to avoid imposing the jail term. If your DWI lawyer does not know the Laurick case, then your lawyer is not a DWI lawyer.

60 Day “Rule

The New Jersey judiciary is, as a matter of policy, committed to the quick and thorough resolution of DWI cases. One of the major problems in trying a DWI is that the municipal courts put a tremendous amount of pressure on everyone to try to resolve a DWI case in 60 days. This is almost impossible. Most municipal courts to not have special sessions to try DWI’s.

In 1984, Chief Justice Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from the Administrative Office of the Courts, that municipal courts should attempt to dispose of DWI cases within sixty days. See, State v. Fox, 249 N.J. Super. 521, 523 & n. 1, 592 A.2d 665 (Law Div. 1991); State v. Perkins, 219 N.J. Super. 121, 124, 529 A. 2d 1056 (Law Div. 1987).

Speedy Trial

STATE v. FARRELL (App. Div. 1999)
In this case, the court held that a DWI driver has a constitutional right to have a speedy trial. Here the court reversed the defendant’s DWI conviction on the grounds of inexcusable extensive delay to prosecute the DWI case. In this case, it took the prosecutor 633 days from issuance of summons, and 13 broken up, widely-spaced court sessions, to try the case. The court held that these delays violated defendant’s right to speedy trial.

Unfortunately, trying DWI cases in a municipal court is not always easy. The municipal courts should dedicate special sessions to trying all DWI cases. It is very hard to try a DWI case, when the court has hundreds of traffic cases that have to be disposed of at the same time. Given the severity of DWI penalties, it is very unfair to try a DWI when the municipal court judge also has to process hundreds of traffic violations at the same time.

Surcharges

WNUCK v. NEW JERSEY DIVISION OF MOTOR VEHICLES, (App. Div. 2001) In this case, the court held that a person who gets a DWI charge in New Jersey, still has to pay the surcharges. Welcome to New Jersey.

Video

STATE v. MAIDA (App. Div. 2000)
In this case the court held that police department had no duty to videotape defendant at police headquarters for a DWI charge. Many times a videotape of a person charges with a DWI will help their case.

STATE v. MANFREDI, (Law Div. 1990)
This case held that if a DWI driver still has a 1.0 BAC reading, then he is still guilty even if he appears fine on the videotape. Basically, this case stands for the principle that a 1.0 BAC still will convict a driver, even if he performs exemplary on the field sobriety tests back at the police station.

Warrant Requirement

STATE v. BOLTE (NJ 1989)
This is a search case. As explained, one of the best ways to beat a DWI is to contest the stop and search of the car. Here, the cop stopped the DWI driver in hot pursuit. The driver was suspected of numerous motor vehicle and disorderly persons offenses. The court held that the cop could not make warrantless entry into suspect’s home to make the arrest.

This is a sample of the most important DWI cases decided in New Jersey. If you have specific questions about any of these cases and how they may apply to your own case, please call me for an immediate free consultation.

“Allowing” DWI

STATE v. MICHALEK, (Law Div. 1985) Here, the court held that a defendant could not be convicted of a crime unless he had proof that he knew, or reasonably should have known, that operator was intoxicated or had blood-alcohol concentration of .10% or more.

Arrest

STATE v. LIBERATORE, (Law Div. 1996) After arresting defendant for resisting arrest following an improper left turn, police officer’s entry into a porch doorway to regain custody of defendant was reasonable; defendant was in sight of officer, and entry into porch doorway was continuation of overall arrest sequence.

Bicycles

STATE v. MACHUZAK, (Law Div. 1988) Here, the court held that the DWI statute did not apply to the operation of non-motorized pedal-type bicycle.

Blood Testing

Under both federal and state law, the State may force a suspect to a undergo a blood test to determine the amount of alcohol in his blood.

Schmerber v. California, supra, 384 U.S. at 770-71, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920; State v. Stever, 107 N.J. 543, 558, 527 A.2d 408 (1987), cert. denied, 484 U.S. 954, 108 S. Ct. 348, 98 L. Ed. 2d 373 (1987); State v. Dyal, 97 N.J. 229, 238-39, 478 A. 2d 390 (1984); State v. Macuk, 57 N.J. 1, 14, 268 A. 2d 1 (1970). “[A]cquiescence is not legally significant or necessary.” Macuk, supra, 57 N.J. at 15, 268 A.2d 1. “Of course, the sample should be taken in a medically acceptable manner at a hospital or other suitable health care facility.” Dyal, supra, 97 N.J. at 238, accord Schmerber, supra, 384 U.S. at 771-72, 86 S. Ct. at 1836, 16 L. Ed.2d at 920 (deeming a reasonable manner to include the taking of blood by a physician in a hospital “according to accepted medical practices”).

STATE v. RAVOTTO, (App. Div. 2001) This case held that the police cannot use unreasonable force to obtain a defendant’s blood sample. If an individual vehemently objects to giving blood, it cannot be extracted against a persons will. However, in this type of situation, the driver will almost always be found guilty.

STATE v. BROADLEY, (Law Div. 1992) In this case, the court held that a local police department must establish reasonable procedures to provide DWI suspects an opportunity to exercise their right to an independent blood test. Consequently, the defendant was successful in suppressing his very high breathalyzer results.

STATE v. ETTORE (App. Div. 1988) held that statutory right of motorist tested for blood alcohol by police to have independent test performed was not violated by police in refusing to transport motorist to hospital for test, refusing to permit motorist to leave by taxi unaccompanied by responsible escort, pursuant to state police policy, and not releasing motorist until her son picked her up, even though, when motorist arrived at emergency room of hospital, hospital refused request for testing because there was “no medical reason” for testing.

STATE v. HICKS (App. Div. 1988) refusing to allow defendant to make telephone call would not require suppression of breathalyzer results unless defendant established, by preponderance of believable evidence, that call was sought for purpose of arranging or discussing possibility of independent test and that independent test could have been conducted in reasonable period of time so as to produce relevant or probative evidence.

Breathalyzer (Admissibility)

For the results to be admissible, the State must establish that the test was properly administered, and proof of proper administration “includes full proof that the equipment was in proper order, the operator qualified and the test given correctly….” State v. Johnson, 42 N.J. 146, 171, 199 A.2d 809 (1964). See also Romano v. Kimmelman, 96 N.J. 66, 90, 474 A. 2d 1 (1984).

Breathalyzer (Extrapolation)

STATE v. DOWNIE,(NJ 1990) Defendants in driving while intoxicated cases are not permitted to challenge blood alcohol determinations made by breathalyzer by taking results and extrapolating to produce estimate of content at time of arrest. Moreover, this case held that the court should always consider the lowest reading of bot BAC samples.

STATE v. TISCHIO (NJ 1987) This case killed the best DWI defense of all time “extrapolation.” This case held that the.Page -3- extrapolation from results of breathalyzer test to demonstrate that defendant’s blood-alcohol level was less than legal 0.10% at time he was actually driving is not admissible as probative evidence in prosecution for statutory offense of driving under the influence.

Breathalyzer (Reliability)

The NJ Supreme Court has steadfastly held that the breathalyzer “reads alcohol with unimpeachable accuracy” and “is unsurpassed in its combined practicality and usefulness.” State v. Downie, 117 N.J. 450, 468-469, 569 A.2d 242 (1990), cert. denied, 498 U.S. 819, 111 S. Ct. 63, 112 L. Ed.2d 38 (1990). See also State v. Tischio, 107 N.J. 504, 527 A.2d 388 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed.2d 855 (1988); Romano v. Kimmelman, 96 N.J. 66, 474 A.2d 1 (1984); State v. Maure, 240 N.J. Super. 269, 277-279, 573 A. 2d 186 (App. Div.1990).

STATE v. LENTINI (App. Div. 1990) per se offense of driving while intoxicated was established by 0.10% reading from properly operated and properly functioning breath testing machine. Moreover, this case kills the Slinger defense. In many case, the courts will take notice of the Slinger defense, that basically means that there is a .01 margin of error in the breathalyzer tests.

STATE V. SLINGER, 281 N.J. Super. 538 (App. Div. 1995), the Appellate Division expressly held that there was a .01 margin of error in a breathalyzer reading. This is perhaps the most important case in NJ DWI law. In close cases such as 1.0 BAC or 1.1 BAC readings, then some judges will give the DWI driver a Slinger benefit of the doubt. This means that the court will deduct .01 from a BAC reading. The rational for the Slinger holding that readings are slightly off because of simulator solution depletion of the breathalyzer machine after several usings.

Breathalyzer Inspection Certificates

STATE v. SANDSTROM, (App. Div. 1994) This is a very technical case. In all DWI cases, the main goal is to attack the breathalyzer machine. Here, the court held that evidence of blood alcohol level of .14% was admissible, even though breath analysis machine had not been certified within previous 30 days, and machine was found to be inoperable 13 days after test was conducted on defendant. Many times the local police departments will not have their breathalyzer machines property certified. A good lawyer will pick up these mistakes. Some judges go by the book, and will acquit the defendant if there are mistakes. However, some. judges will do whatever they can to convict a DWI driver, even if the certificates and the inspections are lacking. In this case, the court held that bi-monthly inspections were all that was required to insure the instrument was in proper working order.

STATE v. SAMAREL,(App. Div. 1989) In a DWI case the prosecutor must supply a DWI driver with an after-certificate. An after-certificate is a form that verifies that the State Police has come to the police station, and he has verified that the breathalyzer machine is in proper working condition. Here, the court held that although presenting at trial a post-test certification that a breathalyzer is in proper working order is the preferred practice, a test result may be admissible without a post-test certificate if there is a pre-test certification made within a month before the test that the machine was in proper working order and there is no evidence that the machine gave inaccurate results when used for the test.

Discovery (Admissibility)

STATE v. MATULEWICZ, (App. Div. 1985) This case deals with the hearsay exception to producing lab reports in a marijuana case. Here, the court held that a state police chemist’s laboratory report that identified controlled dangerous substance as marijuana was inadmissible under public-records exception to hearsay rule, wherein the chemist was not produced as a witness.

Discovery Provided by the State

STATE v. YOUNG,(App. Div. 1990) In this case, the court held that the prosecutor does not have to produce the ampules from the same batch used in defendant’s breathalyzer tests. The court held that this is not part of discovery in a DWI case.

STATE v. FORD, (NJ 1990) This case deals with what type of evidence the prosecutor must supply a DWI lawyer. Many times the prosecutors are lazy and they do not want to provide reasonable discovery to a DWI defendant. This case spells out a prosecutor’s duty to provide discovery in a DWI case.

Defendants’ discovery in DWI cases is limited to those relevant items, enumerated by statute, which there is reasonable basis to believe will assist defendant’s defense; furthermore, court is permitted for good cause shown to limit discovery even if otherwise discoverable. State is not routinely required to supply defendants with manuals for operation of breathalyzer used, as defense counsel seeking such manual may inspect or copy it through arrangements with prosecution under rule, thereby having the manual for general use in the attorney’s practice.

For purposes of production in DWI cases, requiring routine production of entire repair record for breathalyzer instrument or video equipment, or coordinator’s certificate or similar documents without appropriate time limitations would be unreasonable; 12-month limitation should ordinarily suffice.

Under general demand for discovery in DWI case, State should provide full identification of breathalyzer used, date it was first placed in service by State, type of breathalyzer used, including manufacturer, model number and results of coordinator’s testing of breathalyzer for approximately one year to include next testing after defendant’s test, time of administration of test, and results and all reports and relevant documents signed by defendant or pertaining to his condition of sobriety including blood and urine tests.

Drinking After Operation of Vehicle (“Glove Box Defense”)

Error on Ticket

STATE v. LATORRE, (App. Div. 1988) In this case, the court held that a defect in a DWI summons which lacked signature of issuing officer was not fatally defective. Basically, a DWI driver can use a flaw in a DWI ticket to beat the charge. DWI courts have very liberal and they often permit the prosecutor to amend the ticket if there is an error on it.

STATE v. RYFA, (Law Div. 1998) This case stands for the principle that mistakes in summons can be fixed for DWI cases. Here, a DWI summons that was issued erroneously, and it listed the place of offense as town of West Orange, even though offense occurred in East Orange. In this case, the court held that the Court rules gave municipal court power to both amend complaint and transfer jurisdiction, and correction of error neither prejudiced defendant nor created potential for double jeopardy.

Evidentiary Issues

STATE v. GARTHE,(NJ 1996) This case is a very important case. Here, the court ruled that breath test inspector’s inspection certificates (BTIIC’s) are admissible in DWI trials even thought they constitute hearsay. The court held that the BTIIC is admissible according to t business or official record exceptions to hearsay rule.

Horizontal Gaze Nystagmus test (HGN)

STATE v. DORIGUZZI, (App. Div. 2000) This case basically held that the horizontal gaze nystagmus test (HGN) is a not a scientifically reliable to convict a person for DWI. However, the horizontal gaze test can still be used by the cops to establish probable cause to arrest a person for DWI.

Involuntary Intoxication

STATE v. HAMMOND, (NJ 1990) Here, the court held that involuntary intoxication is not a defense to a DWI charge.

Jury Trial

The New Jersey Supreme Court has expressly rejected the argument that a defendant facing conviction as a third time offender of N.J.S.A. 39:4-50 is entitled to a jury trial. State v. Hamm, 121 N.J. 109, 111, 577 A. 2d 1259 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed.2d 466 (1991)

STATE v. ELLIS, (NJ 1990) offenses were not constitutionally “serious,” and thus, no jury trial was required.

Miranda – Rights Requirement

STATE v. NEMESH, (App. Div. 1988) In this case, the court denied a suppression motion of a statement made by the driver. Here, the copy asked the driver upon his arrival at scene of accident as to who was operating involved vehicle in the accident. The court held that this did not constitute custodial interrogation, for purpose of requirement of Miranda warnings.

Miscellaneous (Promise to Dismiss)

STATE V. MARSH, (App. Div. 1996), In this case, the court held that a police officer has no authority to bargain with DWI drivers. Therefore, the court held that a cop has no power to promise dismissal of a pending DWI charge, in exchange for Defendant’s cooperation in unrelated drug investigation.

Operation of Vehicle

STATE v. GARBIN, (App. Div. 1999) This is another control of the vehicle question. Remember operation is a great loophole for DWI defense. Many times the prosecutors overlook this element of DWI, especially when they have a hundred or so traffic ticket defendants bugging them all day. Here, the court held that the cops were justified to enter the defendant’s garage to perform their community caretaking functions. Therefore, the court held that the defendant could be convicted based on operation of vehicle in garage of private residence.

STATE v. MULCAHY, (NJ 1987) This case is really on point for operation cases. An issue in many cases is whether the prosecutor can prove that the DWI driver actually operated the vehicle. Here, the court held that a DWI driver who was clearly drunk, who entered his car, started to put his keys in the ignition and was prevented from doing so by an arresting officer, was operating the car. Thus a person can be convicted for DWI as long as they have an intent to use the vehicle, when they are legally intoxicated. Thus is a cop stops a driver from driving, when they are legally intoxicated, then this still constitutes a DWI.

STATE v. DiFRANCISCO, (Law Div. 1988) This is a control case. Here, the DWI driver was still convicted when he was found slumped behind steering wheel of truck which was sitting partially in ditch, with the keys in the ignition and the engine warm, was insufficient to permit inference that defendant had driven the truck while intoxicated. Remember, the cops to not have to arrest you while you are driving to be convicted of DWI. The prosecutor just has to prove that you had control of the vehicle.

STATE v. SWEENEY, (NJ 1973) This is also an “intent to drive case.” Here, the court sustained the conviction of a person who, in an intoxicated condition. Here, the driver entered a stationary vehicle, on a public highway or in a place devoted to public use, he turned on the ignition, he started and maintained the motor in operation, and he remained in the driver’s seat behind the steering wheel, with the intent to move the vehicle.

STATE v. DALY, (NJ 1973) This case deals with the State’s burden to prove “intent” to drive. Here, the defendant was found seated in the driver’s seat of an automobile parked in the parking lot of a tavern. The driver was intoxicated and asleep; the car lights were off but the motor was running. The driver told the arresting officer that he had no intention of driving and had started the car only to keep warm. The driver testified that he was “sleeping off” his intoxication. The Court held that the proofs did not prove that he was “operating” his car: “In the instant case, defendant denied any intent to move or drive his car until he had sobered up and, contrary to the State’s contention, there was no evidence from which any such intent could be inferred beyond a reasonable doubt.”

STATE v. STIENE, (App. Div. 1985) Here a DWI driver was still convicted of DWI, even though he was not driving the vehicle when he was arrested. The DWI driver was only pushing the car on the highway when he was stopped and arrested. The main point in this case is that the driver had control of the vehicle, and this was sufficient to sustain a DWI conviction.

Physical Testing – No Breath Testing

STATE v. OLIVERI, (App. Div. 2001) This case stands for the principle that a DWI driver can be convicted on observations, and not solely on the breathalyzer results. Here the DWI driver was convicted of DWI without Breathalyzer testing in this case.

Here the cop testified that defendant’s eyes were watery and speech was slow and slurred, he had to make a few requests for defendant to exit vehicle, defendant admitted drinking two beers, when asked to walk heel-to-toe for nine steps up and nine steps back, defendant took 15 steps up and 19 steps back without touching heel-to-toe, had difficulty with one-legged stand, miscounted by thousands from 1,000 to 30,000, and when attempting to recite alphabet from D to S, went to V and missed several letters in between.

Remember, the prosecutor can convict a DWI driver in two ways. A DWI driver can be convicted on a the breathalyzer results, or by the cops observations.

Plea Negotiations

STATE v. HESSEN (NJ 1996) In this case, the New Jersey Supreme Court thoroughly discusses the absolute ban against plea negotiations in all DWI case. This is a bizarre ruling. However, it is illegal to plea bargain a DWI case. Therefore, if you want to fight a DWI, then you must be prepared for a trial.

Probable Cause – Blood Testing

STATE v. O’LOUGHLIN, (App. Div. 1994) Only in extreme cases do the cops take blood for BAC testing. Usually, blood testing is only given when there is an accident involved. In this case, the court held that the observation of the DWI driver upon arrival at hospital and two empty party cups and two crushed beer cans in her car did not provide probable cause for involuntary seizure of her blood. The court held that the DWI driver did not demonstrate any evidence or physical manifestation of having consumed alcohol.

Probable Cause To Stop

STATE v. CRYAN, (App. Div. 1999) stopping defendant because he failed to proceed for five seconds after a red light turned green was not justified on a community caretaking basis. Therefore, the stop was considered to be invalid.

STATE v. LOCURTO, (App. Div. 1997) This case is great to use when a DWI driver is stopped for a bogus motor vehicle violation, to justify a cops fishing expedition to find drunk drivers. It is common knowledge, that cops often make bogus traffic stops, in the hopes of finding drivers who may be guilty of more serious charges.

In this case, the court held that the State failed to prove that police officer had articulable and reasonable suspicion that driver was speeding to justify stop of automobile, despite officer’s testimony that defendant’s vehicle was traveling at high rate of speed in opposite direction based solely on his impression. The court held that the officer’s testimony was too vague, speculative and arbitrary.

STATE v. WASHINGTON, (App. Div. 1997) This is a search case. Here the copy had an objectively reasonable basis to stop defendant’s automobile, pursuant to community caretaking function, when the defendant was driving under speed limit and vehicle was weaving.

Refusal to Perform Field Sobriety Test

STATE v. BRYANT, (App. Div. 2000) Here, the court held that a driver’s refusal to perform any field sobriety tests may be considered as evidence in favor of a conviction for a DWI.

Refusing to Take Breath Test

Breath samples are a non-testimonial form of evidence. State v. Macuk, 57 N.J. 1, 14, 268 A.2d 1 (1970). Therefore, a defendant does not have a Fifth Amendment right to consult with an attorney before taking the test, nor does a defendant have a right to have an attorney present when the test is performed. State v. Leavitt, 107 N.J. 534, 536, 540, 527 A.2d 403 (1987).

STATE v. DiSOMMA (App. Div.1993) Here the court held that a prior violation of statute prohibiting refusal to take breathalyzer test can not serve as first offense for purposes of second offender status for driving while under the influence. The court further held that offenses of driving while under the influence and refusal to take breathalyzer test were not the same or interchangeable violations.

STATE v. WIDMAIER, (NJ 1999) For purposes of implied consent statute, once a defendant says anything except an unequivocal “yes” to the officer’s request that he take breathalyzer test, after the officer has informed the defendant of the consequences of refusal, the defendant cannot legally cure the refusal.

Roadblock

STATE v. FLOWERS,(Law Div. 2000) Here the court held that a roadblock to check for stolen vehicles does not violate the Fourth Amendment.

STATE v. HESTER, (App. Div 1990) Here the court held that a sobriety roadblock are constitutional. The court further held that the police do not have to provide an opportunity for a DWI driver to avoid a checkpoint or refuse to participate.

Sentencing Issues

STATE v. FIELDING, (App. Div. 1996) This is a very important case. Basically, if there is a 10 year gap between DWI convictions, then the DWI driver is sentenced one level below.

Here, the DWI driver two prior DWI convictions occurred in 1981, more than ten years before the present charges. Pursuant to N.J.S.A. 39:4-50(a), the imposition of enhanced penalties for those previously convicted of DWI does not apply “if the second offense occurs more than 10 years after the first offense.” In that situation, “the court shall treat the second conviction as a first offense for sentencing purposes.” N.J.S.A. 39:4-50(a).

However, the statute goes on to provide that, “if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.” Id. Thus, had Fielding consented to a breathalyzer test and been convicted for DWI, he would have been treated as a second offender because his second DWI conviction occurred in 1981.

STATE v. LAURICK,(NJ 1990) This case is great for sentencing a DWI person on a second or third time basis. Basically, this case holds that a prior uncounseled DWI conviction can’t be used to sentence a person to jail, if they did not have a lawyer for the first time DWI charge. Many courts use this case to avoid sending second and third time DWI offenders in jail. The court will still sentence the DWI driver as a second or a third time offender. However, the court often will use the Laurick case to avoid imposing the jail term. If your DWI lawyer does not know the Laurick case, then your lawyer is not a DWI lawyer.

60 Day “Rule”

The New Jersey judiciary is, as a matter of policy, committed to the quick and thorough resolution of DWI cases. One of the major problems in trying a DWI is that the municipal courts put a tremendous amount of pressure on everyone to try to resolve a DWI case in 60 days. This is almost impossible. Most municipal courts to not have special sessions to try DWI’s.

In 1984, Chief Justice Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from the Administrative Office of the Courts, that municipal courts should attempt to dispose of DWI cases within sixty days. See, State v. Fox, 249 N.J. Super. 521, 523 & n. 1, 592 A.2d 665 (Law Div. 1991); State v. Perkins, 219 N.J. Super. 121, 124, 529 A. 2d 1056 (Law Div. 1987).

Speedy Trial

STATE v. FARRELL (App. Div. 1999) In this case, the court held that a DWI driver has a constitutional right to have a speedy trial. Here the court reversed the defendant’s DWI conviction on the grounds of inexcusable extensive delay to prosecute the DWI case. In this case, it took the prosecutor 633 days from issuance of summons, and 13 broken up, widely-spaced court sessions, to try the case. The court held that these delays violated defendant’s right to speedy trial.

Unfortunately, trying DWI cases in a municipal court is not always easy. The municipal courts should dedicate special sessions to trying all DWI cases. It is very hard to try a DWI case, when the court has hundreds of traffic cases that have to be disposed of at the same time. Given the severity of DWI penalties, it is very unfair to try a DWI when the municipal court judge also has to process hundreds of traffic violations at the same time.

Surcharges

WNUCK v. NEW JERSEY DIVISION OF MOTOR VEHICLES, (App. Div. 2001) In this case, the court held that a person who gets a DWI charge in New Jersey, still has to pay the surcharges. Welcome to New Jersey.

Video

STATE v. MAIDA (App. Div. 2000) In this case the court held that police department had no duty to videotape defendant at police headquarters for a DWI charge. Many times a videotape of a person charged with a DWI will help their case. STATE v. MANFREDI, (Law Div. 1990) This case held that if a DWI driver still has a 1.0 BAC reading, then he is still.Page -12- guilty even if he appears fine on the videotape. Basically, this case stands for the principle that a 1.0 BAC still will convict a driver, even if he performs exemplary on the field sobriety tests back at the police station.

Warrant Requirement

STATE v. BOLTE (NJ 1989) This is a search case. As explained, one of the best ways to beat a DWI is to contest the stop and search of the car. Here, the cop stopped the DWI driver in hot pursuit. The driver was suspected of numerous motor vehicle and disorderly persons offenses. The court held that the cop could not make warrantless entry into suspect’s home to make the arrest.

1. Don/t drink and drive under any circumstances!

However if you find you have alcohol on your breath and you are stopped by a police officer the following may prove helpful.

2. Always be respectful of the officer.

Don’t try to be smart, cute or clever. You can’t outsmart the officer or talk him out of what he is going to do. Produce your driver license and insurance card. Stay calm! Don’t answer any questions at any time. Keep your mouth shut. Respectfully tell the officer that you are not going to answer any of his questions at any time under any circumstances.

3. Don’t allow the officer to conduct any field tests on you.

Field Sobriety Tests in New Jersey are voluntary, this means you are not required by law to take them — No Matter What the Police Officer Tells You. This includes eye tests, balance tests, finger tests, questions and answers. Respectfully tell the officer that you will not consent to any of his field tests or answer any questions.

4. Don’t take a preliminary breath test (PBT).|

This is a test that is usually given with a small hand held device on the roadside. There is no legal requirement to take this test, so don’t take it under any circumstances. The police officer will say something to you to the effect that he “just wants to check to see if you are ok” and that it is not admissible in court. What he doesn’t tell you is that he can use the test in deciding whether to arrest you for DWI. Don’t take this test!

5. Do take the breath test, and/or consent to a blood test.

If you refuse to take these test(s) your driver license will be suspended for one year. This test can only be administered after you have been placed under arrest. Some police will tell you that you are under arrest. While some police won’t.

“The Interstate Compact”

If a driver is convicted in New Jersey, then he will lose only his driving privileges in the State of New Jersey. However, New Jersey will report conviction to home state. Thereafter, your home state also suspend your driver’s license for whatever period someone in your state would receive if he were convicted for a DWI.

The Interstate Driver’s License Compact requires member states to report traffic tickets received by a driver to their home state. Consequently, once the traffic ticket or the DWI is reported, then he will receive points and insurance hikes in home state. Moreover, in most cases, when a driver receives a DWI in New Jersey, once the case is reported to his home state, he will also receive a significant suspension of his driver’s license. New Jersey is a member of the Compact, and will report any infractions to your “home state”.

The only states that are NOT members of the Interstate Compact are:

• Tennessee
• Georgia
• Massachusetts
• Wisconsin
• Michigan

If you are an out-of-state driver, please call me to discuss ways to limit your exposure from any potential N.J. DWI conviction, and the ways that we can fight the DWI that is haunting you.

If you have been charged with “refusal”, then there are many excellent strategies that we can explore to save your license. Many states have varying laws with regard to their respective refusal statutes. Many states give drivers much more rights to refuse a breath test than New Jersey does. Therefore, even if you are convicted of refusal in New Jersey, there is no guarantee that a drive will also lose their driver’s license in their home state.

About the Non-Resident Violator Compact

The Non-Resident Violator Compact requires member states to suspend the drivers license of those who get traffic tickets for moving violations in other states and fail to pay them. The compact is not supposed to include non-moving violations such as expired inspection stickers, equipment violations such as window tinting or parking violations.

Minors in a Vehicle – N.J.S.A. 39:4-50.15

A person who operates a vehicle while under the influence can also commit a disorderly persons offense if he or she has a minor in the car at the time of the offense. The penalties for this offense are as follows;

1. Loss of Driving Privileges: The municipal court judge must suspend the driver’s license for seven months.
2. Community Service: A DWI driver must perform up to five days of community service.
3. Fines: The municipal court judge may impose a fine up to the amount of $1,000.
4. Jail Term: A driver convicted of this offense faces a possible jail term of up to six months.

Consumption of an Alcoholic Beverage in a Motor Vehicle – N.J.S.A. 39:4-51(a)

New Jersey law specifically forbids the operation of any vehicle by a person who is consuming alcohol. It is unlawful for any driver to have an open container of beer or alcohol in their car. Even if the driver is perfectly sober, it is still against the law to have open containers of alcohol in the vehicle. In order to prosecutor an open container charge, the State must prove that the vehicle was being operated. Moreover, the state must also establish beyond a reasonable doubt that the driver consumed a beverage that contained at least some alcohol during the time when he was driving the vehicle. For a first offense, the fine is $200. There are no points or surcharges for this traffic violation.

Operation While in Possession of CDS

As per N.J.S.A. 39:4-49.1 it is an offense to operate a motor vehicle if the driver has “knowing” possession of drugs or CDS (Controlled Dangerous Substances). There are five elements that the State must prove. They include;

1. Operation of a motor vehicle
2. On a highway
3. While in knowing possession
4. Of CDS or prescription legend drugs
5. Located on the person of the operator or within the vehicle

A driver who is convicted of this charge faces high fines. Moreover, the convicted driver must also lose their drivers license for two years.

The Resolution of the Drug Charge

A driver who is facing a DWI charge, and a CDS in a motor vehicle charge faces much trouble. The driver faces approximately two and a half years of having their driving license suspended, and also heavy fines. In many cases, the prosecutor will permit the driver to enter into a PTI program, and the CDS drug charge will go away. However, as part of this deal, the driver will have to plead out to the DWI charge. In most cases, the prosecutor will not split up the case, and permit the driver to enter into PTI for the drug charge, but still have a trial for the DWI charge.

If a driver has been convicted of an alcohol or drug related traffic or boating offense in New Jersey, then he must satisfy the requirements of the Intoxicated Driving Program (IDP) and the Intoxicated Driver Center (IDRC).

The Intoxicated Driving Program is a unit of the Division of Addiction Services of the New Jersey Department of Health and Senior Services. The IDRC’s are units of, or contractors to, the 21 counties. IDP schedules you for the 12- or 48- Hour IDRC program and notifies Motor Vehicle Commission (MVC) when you have completed or failed to comply.

If a driver is sentenced as a first offender, he will be detained, educated, and evaluated for at least six hours each day on two consecutive days — a total of 12 hours – in the county IDRC facility. If the driver is sentenced as a second offender and he is not sentenced to jail or inpatient treatment, he will be detained, educated and evaluated during a period of 48 consecutive hours in a regional facility.

If a driver is sentenced as a third offender, then the municipal court may sentence the driver to jail or to an inpatient alcoholism treatment program or both. Nonetheless, the IDP will schedule the driver to appear at the 12 hour IDRC for a follow-up evaluation. The driver may also be required to participate in additional treatment or self help. In all cases you must satisfy the program, fee and treatment requirements of IDP/IDRC before any type of driver’s license is restored.

The Motor Vehicle Commission (MVC) will also send the driver a notice confirming your license suspension, and they will also bill the driver $200 for the MVC restoration fee ($100) and the IDP administrative fee ($100). The IDP fee is required for each alcohol-related conviction. The combined fee of $200 is payable immediately to the DMV upon confirmation of the suspension at a 12-hour IDRC or $200 at a 48 hour IDRC. If the driver is referred to a treatment program then they are also responsible for these costs.

If a driver does not live in New Jersey, then he/she still will have to comply with the program requirements. The driving privilege restoration and IDP fees $200.00 still must be paid to Motor Vehicle Commission. If you live within driving distance of an IDRC in New Jersey, then you will be scheduled to appear there. If not, you will be given an opportunity to satisfy the requirements in your home state.

If you fail to appear at the IDRC or if you do not satisfactorily complete a prescribed treatment or self-help program, or pay the fees on time, your license suspension will be extended, and you may also be jailed two days for non-compliance. The IDP/IDRC program completion will still be required.

What happens at the IRDC?

The driver will have to pay the IDRC a program fee and also complete a questionnaire. The driver will attend a series of educational sessions and discussions about DWI and the effects of drinking and driving. Most often, the drivers will have to watch numerous videotapes of bad accidents involving DWI. The driver will also meet with a counselor for their own personal evaluative interview.

The education program, which is part of the 12 and 48 hour IDRC, contains information on social and problem drinking, stages of alcoholism, the family and other relationships, alcohol and drugs and their effects on driving ability, and the New Jersey Intoxicated Driving Law.

After the education program, the driver may be referred to a treatment program or self-help group for alcohol or drug problems. If the driver is referred to treatment, it will be for a minimum of 16 weeks. The IDRC may require monitored treatment or self-help group attendance for a maximum of one year. You must complete treatment as part of your sentence.

A person’s driving privilege will only be restored when they have served all court- and MVC-imposed suspensions and if they are in compliance with all of the Intoxicated Driving Program and Intoxicated Driver Resource Center requirements.

INTOXICATED DRIVER RESOURCE CENTER – FAQ’S

1. How does the program apply to me?

If you have been convicted of an alcohol drug-related traffic or boating offense in New Jersey, then you must satisfy the requirements of the Intoxicated Driving Program (IDP) and the Intoxicated Driving Center (IDRC). These programs have two purposes; (1) to make our highways and waterways safer by educating drivers and boat operators about alcohol, drugs and their relation to motor vehicle and boating safety; and (2) to identify and treat those who need treatment for an alcohol or drug problem.

2. What program must I attend, and where is it?

If you are sentenced as a first offender, you will be detained, educated and evaluated for at least six hours each day on two consecutive days – a total of 12 hours – in your county IDRC. If you are sentenced as a second offender and not sentenced to jail or inpatient treatment, you will be detained, educated and evaluated during a period of 48 consecutive hours in a regional facility.

If you are sentenced as a third offender, then the court may sentence you to jail or to an inpatient alcoholism treatment program or both. IDP will schedule you to appear at the 12-hour IDRC to follow up. You may be required to participate in additional treatment or self help. In all cases you must satisfy the program, fee and treatment requirements of IDP/IDRC before your license is restored.

3. How much does it cost?

Motor Vehicle Services (MVS) will send you a notice confirming your license suspension and will bill you $150 for the MVS restoration fee ($50) and the IDP administrative fee ($100). The IDP fee is required for each alcohol-related conviction. This combined fee of $150 is payable immediately to the Division of Motor Vehicle Services upon confirmation of your suspension. In addition, you must pay $150 upon attendance at a 12-hour IDRC of $200 at a 48 hour IDRC. If you are referred to a treatment program you are also responsible for those costs.

4. If I don’t live in New Jersey must I still comply?

Yes. The driving privilege restoration and IDP fees $150 still must be paid to Motor Vehicle Service. If you live within driving distance of an IDRC in New Jersey, you will be scheduled to appear there. If not you will be an opportunity to satisfy the requirements in you home state.

5. What if I don’t participate?

If you fail to appear at the IDRC or do not satisfactorily complete a prescribed treatment or self-help program, or pay the fees on time, your license suspension will be extended or reimposed, and you may also be jailed two days for non-compliance. IDP/IDRC program completion will still be required.

6. What happens at the IDRC?

You will pay the IDRC program fee and complete a questionnaire. You will attend a series of educational sessions and discussions. You will meet with a counselor for a personal evaluation interview.

7. What does the education program do?

The education program, which is part of the 12- and 48- hour IDRC, contains information on social and problem drinking, stages of alcoholism, the family and other relationships, alcohol and drugs and their effects on driving ability, and the New Jersey Intoxicated Driving Law.

8. What happens after I have been detained and evaluated?

You may be referred to a treatment program or self-help group for alcohol or drug problems. If you are referred to treatment, it will be for a minimum of 16 weeks. The IDRC may require monitored treatment or self-help group attendants for a maximum of one year. You must complete treatment as part of your sentence.

9. What about my driver’s license?

Your driving privilege will be restored when you have served all court- and MVS-imposed suspensions and if you are in compliance with all Intoxicated Driving Program and Intoxicated Driver Resource Center requirements.

10. What is the IDP/IDRC?

The Intoxicated Driving Program is a unit of the Division of Addiction Services of the New Jersey Department of Health and Senior Services. The IDRC’s are units of, or contractors to, the 21 counties. The IDP schedules you for the 12-or 48-hour IDRC program and notifies Motor Vehicle Services (MVS) when you have completed or failed to comply. IDP staff work with the IDRC’s to insure that you are treated fairly under the law.

For more information

Write to:
Intoxicated Driving Program
P.O. Box 365, Trenton
New Jersey 08625-0365.
Or view the MVC website.

The following list of court codes that can help a driver interpret their driver’s abstract, and to determine where a prior DWI violation occurred.

If you have any questions about your own driver’s abstract, please call me at 732-257-0708 or on my cell phone 908-208-8658.

_ Atlantic County – Code A
_ A02 Absecon City 0101
_ A03 Atlantic City 0102
_ A04 Brigantine City 0103
_ A05 Buena Boro 0104
_ A06 Buena Vista Twp 0105
_ A08 Egg Harbor City 0107
_ A09 Egg Habor Twp. 0108
_ A11 Folsom Boro 0110
_ A12 Galloway Twp. 0111
_ A13 Hamilton Twp. 0112
_ A14 HammontonTown 0113
_ A15 Linwood City 0114
_ A16 Longport Boro 0115
_ A17 Margate City 0116
_ A19 Mullica Twp. 0117
_ A20 Northfield City 0118
_ A21 Pleasantville City 0119
_ A22 Port Republic 0120
_ A23 Somers Point City 0121
_ A24 Ventnor City 0122
_ A81 Jt. Ct. of Corbin City, Estelle Manor, Weymouth Twp. (Interboro) 0123
_ A95 Atlantic Co. Dist. Co.
_ A96 Atlantic Co. Ct.
_ A97 Atlantic Co. Juv. Ct.
_ Bergen County – Code B
_ B02 Allendale Boro 0201
_ B03 Alpine Boro 0202
_ B04 Bergenfield Boro 0203
_ B05 Bogota Boro 0204
_ B06 Carlstadt Boro 0205
_ B07 Cliffside Pk. Boro 0206
_ B08 Closter Boro 0207
_ B09 Creskill Boro 0208
_ B10 Demarest Boro 0209
_ B11 Dumont Boro 0210
_ B12 Elmwood Pk. 0211
_ B13 E. Rutherford Boro 0212
_ B14 Edgewater Boro 0213
_ B15 Emerson Boro 0214
_ B16 Englewood City 0215
_ B17 Englewood Cliffs Br. 0216
_ B18 Fair Lawn Boro 0217
_ B19 Fairview Boro 0218
_ B20 Fort Lee Boro 0219
_ B21 Franklin Lakes Boro 0220
_ B22 Garfield city 0221
_ B23 Glen Rock Boro 0222
_ B24 Hackensack City 0223
_ B25 Harrington Pk Boro 0224
_ B26 Hasbrouck Hgts. Br 0225
_ B27 Haworth Boro 0226
_ B28 Hillsdale Boro 0227
_ B29 Ho-Ho-Kus Boro 0228
_ B30 Leonia Boro 0229
_ B31 Little Ferry Boro 0230
_ B32 Lodi Boro 0231
_ B33 Lyndhurst Twp. 0232
_ B34 Mahway Twp. 0233
_ B35 Maywood Boro 0234
_ B36 Midland Pk. Boro 0235
_ B37 Montvale Boro 0236
_ B38 Moonachie Boro 0237
_ B39 New Milford Boro 0238
_ B40 N. Arlington Boro 0239
_ B41 Northvale Boro 0240
_ B42 Norwood Boro 0241
_ B43 Oakland Boro 0242
_ B44 Old Tappan Boro 0243
_ B45 Oradell Boro 0244
_ B46 Palisades Intrst Pk. 0288
_ B47 Palisades Pk Br 0245
_ B48 Paramus Boro 0246
_ B49 Park Ridge Boro 0247
_ B50 Ramsey Boro 0248
_ B51 Ridgefield Boro 0249
_ B52 Ridgefield Pk Br 0250
_ B53 Ridgefield Village 0251
_ B54 River Edge Boro 0252
_ B55 River Vale Twp. 0253
_ B56 Rochelle Pk Twp. 0254
_ B57 Rockleigh Boro 0255
_ B58 Rutherford Boro 0256
_ B59 Saddle Brook Twp. 0257
_ B60 Saddle River Boro 0258
_ B61 S. Hackensack Twp.0259
_ B62 Teaneck Twp. 0260
_ B63 Tenafly Boro 0261
_ B64 Teterboro Boro 0262
_ B65 Upper Saddle River 0263
_ B66 Waldwick Boro 0264
_ B67 Wallington Boro 0265
_ B68 Washington Twp. 0266
_ B69 Westwood Boro 0267
_ B70 Woodcliff Lake Boro 0268
_ B71 Wood-Ridge Boro 0269
_ B72 Wyckoff Twp. 0270
_ B95 Bergen Co. Dist. Ct. 0290
_ B96 Bergen Co. Ct.
_ B97 Bergen Co. Juv. Ct.
_ Burlington County – Code C
_ C03 Beverly City 0302
_ C04 Bordentown City 0303
_ C05 Bordentown Twp. 0304
_ C06 Burlington City 0305
_ C07 Burlington Twp. 0306
_ C08 Chesterfield Twp. 0307
_ C09 Cinnaminson Twp. 0308
_ C10 Delanco Twp. 0309
_ C11 Delran Twp. 0310
_ C12 Eastampton Twp. 0311
_ C13 Edgewater Park Twp. 0312
_ C14 Evesham Twp. 0313
_ C15 Fieldsboro Boro 0314
_ C16 Florence Twp. 0315
_ C17 Hainesport twp. 0316
_ C18 Willingboro Twp. 0317
_ C19 Lumberton Twp. 0318
_ C20 Mansfield Twp. 0319
_ C21 Maple Shade Twp. 0320
_ C22 Medford Twp. 0321
_ C23 Medford Lakes Boro 0322
_ C24 Moorestwon Twp. 0323
_ C25 Mount Holly Twp. 0324
_ C26 Mount Laurel Twp. 0325
_ C28 N. Hanover Twp. 0327
_ C29 Palmyra Boro 0328
_ C30 Pemberton Boro 0329
_ C31 Pemberton Twp. 0330
_ C32 Riverside Twp. 0331
_ C33 Riverton Boro 0332
_ C34 Shamong Twp. 0333
_ C35 Southampton Twp. 0334
_ C36 Springfield Twp. 0335
_ C37 Tabernacle Twp. 0336
_ C39 Wastampton Twp. 0339
_ C40 Woodland Twp. 0339
_ C42 Washington Twp. 0337
_ C82 Bass River Twp. 0301 (Ct. sits in New Gretna)
_ C83 Jt. Ct. of New Hanover Twp.
_ Wrightstown Boro 0326
_ C95 Burlington Co. Dist. Ct.
_ C96 Burlington Co. Ct.
_ C97 Burlington Co. Juv. Ct.
_ Camden County – Code D
_ D02 Audubon Boro 0401
_ D03 Audubon Pk. Boro 0402
_ D04 Barrington Boro 0403
_ D05 Bellmawr Boro 0404
_ D06 Berlin Boro 0405
_ D07 Berlin Twp. 0406
_ D08 Brooklawn Boro 0407
_ D09 Camden City 0408
_ D10 Cherry Hill Twp. 0412
_ D11 Chesilhurst Boro 0409
_ D12 Clementon Boro 0410
_ D13 Collingswood boro 0411
_ D15 Gibbsboro Boro 0413
_ D16 Gloucester City 0414
_ D17 Gloucester Twp. 0415
_ D18 Haddon Twp. 0416
_ D19 Haddonfield Boro 0417
_ D20 Haddon Hgts Boro 0418
_ D21 Hi-Nella Boro 0419
_ D22 Laurel Springs Boro 0420
_ D23 Lawnside Boro 0421
_ D24 Lindenwold Boro 0422
_ D25 Magnolia Boro 0423
_ D26 Merchantville Boro 0424
_ D27 Mt. Ephraim Boro 0425
_ D28 Oaklyn Boro 0426
_ D29 Pennsauken Twp. 0427
_ D30 Pine Hill Boro 0428
_ D31 Pine Valley Boro 0429
_ D32 Runnemede Boro 0430
_ D33 Somerdale Boro 0431
_ D34 Stratford Boro 0432
_ D36 Voorhees Twp. 0434
_ D37 Waterford Twp. 0435
_ D38 Winslow Two. 0436
_ D39 Woodlynne Boro 0437
_ D95 Camden Co. Dist. Ct.
_ D96 Camden Co. Ct.
_ D97 Camden Co. Juv. Ct.
_ Cape May County – Code E
_ E02 Avalon Boro 0501
_ E03 Cape May City 0502
_ E05 Cape May Point Boro 0503
_ E06 Dennis Twp. 0504
_ E07 Lower Twp. 0505
_ E08 Middle Twp. 0506
_ E09 N. Middle Twp. 0507
_ E10 Ocean City 0508
_ E11 Sea Isle City 0509
_ E12 Stone Harbor Boro 0510
_ E13 Upper Twp. 0511
_ E15 W. Cape May Boro 0512
_ E16 W. Wildwood Boro 0513
_ E17 Wildwood City 0514
_ E18 Wildwood Crest Boro 0515
_ E19 Woodbine Boro 0516
_ E95 Cape May Co. Dist. Ct.
_ E96 Cape May Co. Ct.
_ E97 Cape May Co. Juv. Ct.
_ Cumberland County – Code F
_ F02 Bridgeton City 0601
_ F04 Commercial Twp. 0602
_ F05 Deerfield Twp. 0603
_ F06 Downe Twp. 0604
_ F07 Fairfield Twp. 0605
_ F08 Greenwich Twp. 0606
_ F09 Hopewell Twp. 0607
_ F10 Lawrence Twp. 0608
_ F11 Maurice River Twp. 0609
_ F12 Millville City 0610
_ F16 Stow Creek/Shiloh 0612
_ F17 Upper Deerfield Twp.0613
_ F18 Vineland City 0614
_ F95 Cumberland Co. Dist. Co.
_ F96 Cumberland Co. Ct.
_ F97 Cumberland Co. Juv. Ct.
_ Essex County – Code G
_ G02 Belleville Twp. 0701
_ G03 Bloomfield Town 0702
_ G04 Caldwell Boro 0703
_ G05 Fairfield Twp. 0704
_ G06 Cedar Grove Twp. 0705
_ C07 E. Orange City 0706
_ G08 Essex Fells Boro 0707
_ F09 Glen Ridge Boro 0708
_ F10 Irvington Town 0709
_ G11 Livingston Twp. 0710
_ G12 Maplewood Twp. 0711
_ G13 Milburn Twp. 0712
_ G14 Montclair Town 0713
_ G21 Newark City 0714
_ G23 N. Caldwell Twp. 0715
_ G24 Nutley Town 0716
_ G25 Orange City 0717
_ G26 Roseland Boro 0718
_ G27 S. Orange Village 0719
_ G28 Verona Boro 0720
_ G29 W. Caldwell Boro 0721
_ G30 W. Orange Town 0722
_ G95 Essex Co. Dist. Ct.
_ G96 Essex Co. Ct.
_ G97 Essex Co. Juv. Ct.
_ Gloucester County – Code H
_ H02 Clayton Boro 0801
_ H03 Deptford Twp. 0802
_ H04 E. Greenwich Twp. 0803
_ H05 Elk Twp. 0804
_ E06 Franklin Boro 0805
_ H08 Glassboro Twp. 0806
_ H09 Greenwich Twp. 0807
_ H10 Harrison Twp. 0808
_ H11 Logan Twp. 0809
_ H12 Mantua Twp. 0810
_ H13 Monroe Twp. 0811
_ H14 National Park Boro 0812
_ H15 Newfield Boro 0813
_ H16 Paulsboro Boro 0814
_ H17 Pitman Boro 0815
_ H18 S. Harrison Twp. 0816
_ H20 Washington Twp. 0818
_ H21 Wenonah Boro 0819
_ H22 W. Deptford Twp. 0820
_ H23 Westville Boro 0821
_ H25 Woodbury City 0822
_ H26 Woodbury Hgts. Boro 0823
_ H27 Swedesboro Boro 0817
_ H28 Woolwich Twp. 0824
_ H95 Gloucester Co. Dist. Co.
_ H96 Gloucester Co. Ct.
_ H97 Gloucester Co. Juv. Ct.
_ Hudson County – Code J
_ J02 Bayonne City 0901
_ J03 E. Newark Boro 0902
_ J04 Guttenberg Town 0903
_ J05 Harrison Town 0904
_ J12 Kearny Town 0907
_ J13 N. Bergen Twp. 0908
_ J14 Secaucus Town 0909
_ J15 Union City 0910
_ J16 Weehawkin Twp. 0911
_ J17 W. New York Town 0912
_ J95 Hudson Co. Dist. Co. 0990
_ J96 Hudson Co. Ct.
_ J97 Hudson Co. Juv. Ct.
_ J98 Hudson Co. Probation Dept.
_ Hunterdon County – Code K
_ K03 Bethlehem/
_ Bloomsbury/Hampton 1002
_ K10 Flemington Boro Mun.1009
_ K15 High Bridge Boro 1014
_ K17 Kingwood Twp. 1016
_ K18 Lambertville City 1017
_ K19 Lebanon Boro 1018
_ K22 Raritan Twp. 1021
_ K23 Readington Twp. 1022
_ K24 Stockton Boro 1023
_ K25 W. Amwell Twp. 1026
_ K26 Union Twp. 1025
_ K81 Jt. Ct. of Alexandria 1020
_ Town., Frenchtown Boro,
_ Holland Twp., Milford
_ Boro Ct. sits in Milford
_ Boro
_ K82 Jt. ct. of Delaware 1008
_ Twp., E. Amwell Twp.
_ Ct. sits in Ringoes
_ K84 N. Hunterdon Ct. for
_ Califon Boro, Clinton
_ Town Clinton Twp.,
_ Frank Twp., Glen Gardner
_ Boro, Lebanon Twp.,
_ Tewksbury Twp. Ct. sits
_ in Annandale 1006
_ K95 Hunterdon Co. Dist. Ct.
_ K96 Hunterdon Co. Ct.
_ K97 Hunterdon Co. Juv. Ct.
_ Mercer County – Code L
_ L02 E. Windsor Twp. 1101
_ L03 Ewing Twp. 1102
_ L04 Hamilton Twp. 1103
_ L05 Highstown Boro 1104
_ L06 Hopewell Boro 1105
_ L07 Hopewell Twp. 1106
_ L08 Lawrence Twp. 1107
_ L10 Pennington Boro 1108
_ L11 Princeton Boro 1109
_ L12 Princeton Twp. 1110
_ L13 Trenton City 1111
_ L14 Washington Twp. 1112
_ L15 W. Windsor Twp. 1113
_ L95 Mercer co. Dist. Co.
_ L96 Mercer Co. Ct.
_ L97 Mercer Co. Juv. Ct.
_ Middlesex County – Code M
_ M02 Carteret Boro 1201
_ M04 Cranbury Two. 1202
_ M05 Dunellen Boro
_ M06 E. Brunswick Twp. 1204
_ M07 Edison Twp. 1205
_ M08 Helmetta Boro 1206
_ M09 Highland Pk. Boro 1207
_ M10 Jamesburg Boro 1208
_ M12 Old Bridge Twp. 1209
_ M12 Metuchen Boro 1210
_ M13 Middlesex Boro 1211
_ M15 Milltown Boro 1212
_ M15 Monroe Twp. 1213
_ M16 New Brunswick City1214
_ M17 N. brunswick Twp. 1215
_ M18 Perth Amboy City 1216
_ M19 Piscataway Twp. 1217
_ M20 Plainsboro Twp. 1218
_ M21 Sayreville Boro 1219
_ M22 S. Amboy City 1220
_ M23 S. Brunswick Twp. 1221
_ M24 S. Plainfield Boro 1222
_ M25 South River Boro 1223
_ M26 Spotswood Boro 1223
_ M27 Woodbridge Twp. 1225
_ M95 Middlesex Co. Dist. Ct.
_ M96 Middlesex Co. Ct.
_ M97 Middlesex Co. Juv. Ct.
_ Monmouth County – Code N
_ N02 Allenhurst Boro 1301
_ N03 Allentown Boro 1302
_ N04 Asbury Pk. City 1303
_ N05 Colts Neck Twp. 1304
_ N06 Atlantic HighlandsBo1305
_ N07 Avon-By-The-SeaBo1306
_ N08 Belmar Boro 1307
_ N10 Bradley Beach Boro1308
_ N11 Brielle Boro 1309
_ N12 Deal Boro 1310
_ N13 Eatontown Boro 1311
_ N14 Englishtown Boro 1312
_ N15 Fair Haven Boro 1313
_ N16 Farmingdale Boro 1314
_ N17 Freehold Boro 1315
_ N18 Freehold Twp. 1316
_ N19 Highlands Boro 1317
_ N20 Holmdel Twp. 1318
_ N21 Howell Twp. 1319
_ N22 Interlaken Boro 1320
_ N23 Keansburg Boro 1321
_ N24 Keyport Boro 1322
_ N25 Little Silver Boro 1323
_ N26 Loch Arbour Village 1324
_ N27 Long Branch City 1325
_ M28 Manalapan Twp. 1326
_ M29 Manasquan Boro 1327
_ N30 Marlboro Twp. 1328
_ N31 Matawan Boro 1329
_ N32 Aberdeen Twp. 1330
_ N33 Middletown Twp. 1331
_ N34 Millstone Twp. 1332
_ N35 Monmouth Beach Bo1333
_ N36 Neptune City Boro 1335
_ N37 Neptune Twp./Ocean Grove 1334
_ N38 Tinton Falls Boro 1336
_ N40 Ocean Twp. 1337
_ N42 Oceanport Boro 1338
_ N43 Hazlet Twp. 1339
_ N44 Red Bank Boro 1340
_ N45 Roosevelt Boro 1341
_ N46 Rumson Boro 1342
_ N47 Sea Bright Boro 1343
_ N48 Sea Girt Boro 1344
_ N49 Shrewsbury Boro 1345
_ N50 Shrewsbury Twp. 1346
_ N51 S. Belmar Boro 1347
_ N52 Spring Lake Boro 1348
_ N53 Spring Lake Hgts. Bo1349
_ N54 Union Beach Boro 1350
_ N55 Upper Freehold Twp.1351
_ N56 Wall Twp. 1352
_ N59 W. Long Branch Boro 1353
_ N95 Monmouth Co. Dist. Co.
_ N96 Monmouth Co. Ct.
_ N97 Monmouth Co. Juv. Ct.
_ Morris County – Code P
_ P02 Boonton Town 1401
_ P03 Boonton Twp. 1402
_ P05 Butler Boro 1403
_ P06 Chatham Boro 1404
_ P07 Chatham Twp. 1405
_ P08 Chester Boro 1406
_ P09 Chester Twp. 1407
_ P10 Denville Twp. 1408
_ P11 Dover Town 1409
_ P12 E. Hanover Twp. 1410
_ P14 Florham Pk. Boro 1411
_ P15 Hanover Twp. 1412
_ P16 Harding Twp. 1413
_ P17 Jefferson Twp. 1414
_ P18 Kinnelon Boro 1415
_ P19 Lincoln Pk. Boro 1416
_ P21 Madison Boro 1417
_ P22 Mendham Boro 1418
_ P23 Mendham Twp. 1419
_ P25 Mine Hill Twp. 1420
_ P26 Montville Twp. 1421
_ P27 Morris Twp. 1422
_ P28 Morris Plains Boro 1423
_ P29 Morristown Town 1424
_ P30 Mountain Lakes Boro 1425
_ P31 Mt. Arlington Boro 1426
_ P33 Mt. Olive Twp. 1427
_ P35 Netcong Boro 1428
_ P36 Parsippany-Troy
_ Hills Twp. 1429
_ P37 Long Hill Twp. 1430
_ P38 Pequannock Twp. 1431
_ P39 Randolph Twp. 1432
_ P40 Riverdale Boro 1433
_ P41 Rockaway Boro 1434
_ P42 Rockaway Twp. 1435
_ P43 Roxbury Twp. 1436
_ P46 Victory Gardens Boro1437
_ P47 Washington Twp. 1438
_ P48 Wharton Boro 1439
_ P95 Morris Co. Dist. Co.
_ P96 Morris Co. Ct.
_ P97 Morris Co. Juv. Ct.
_ Ocean County – Code Q
_ Q01 Barnegat Twp. 1533
_ Q02 Barnegat Light Boro 1501
_ Q03 Bay Head Boro 1502
_ Q04 Beach Haven Boro 1503
_ Q05 Beachwood Boro 1504
_ Q06 Berkely Twp. 1505
_ Q08 Brick Twp. 1506
_ Q10 Dover Twp. 1507
_ Q11 Eagleswood Twp. 1508
_ Q13 Harvey Cedars Boro 1509
_ Q14 Island Hgts. Boro 1510
_ Q15 Jackson Twp. 1511
_ Q16 Lacey Twp. 1512
_ Q17 Lakehurst Boro 1513
_ Q19 Lakewood Twp. 1514
_ Q20 Lavellette Boro 1515
_ Q22 Long Beach Twp. 1517
_ Q23 Manchester Twp. 1518
_ Q24 Mantoloking Boro 1519
_ Q27 Ocean Gate Boro 1521
_ Q28 Pine Beach Boro 1522
_ Q29 Plumsted Twp. 1523
_ Q30 Pt. Pleasant Boro 1525
_ Q31 Pt. Pleasant Beach 1524
_ Q32 Seaside Hgts. Boro 1526
_ Q33 Seaside Hgts. Boro 1527
_ Q34 Ship Bottom Boro 1528
_ Q35 S. Toms River Boro 1529
_ Q36 Stafford Twp. 1530
_ Q37 Surf City Boro 1531
_ Q39 Tuckerton Boro 1532
_ Q40 Little Egg Harbor Tp.1516
_ Q41 Ocean Twp. 1520
_ Q95 Ocean Co. Dist. Ct.
_ Q96 Ocean Co. Ct.
_ Q97 Ocean Co. Juv. Ct.
_ Passaic County – Code R
_ R02 Bloomingdale Boro 1601
_ R03 Clifton City 1602
_ R04 Haledon Boro 1603
_ R05 Hawthorne Boro 1604
_ R06 Little Falls Twp. 1605
_ R07 N. Haledon Boro 1606
_ R08 Passaic City 1607
_ R09 Paterson City 1608
_ R10 Pompton Lakes Boro1609
_ P11 Prospect Pk. Boro 1610
_ R12 Ringwood Boro 1611
_ R13 Totowa Boro 1612
_ R14 Wanaque Boro 1613
_ R15 Wayne Twp. 1614
_ R16 W. Milford Twp. 1615
_ R17 W. Paterson Boro 1616
_ R95 Passaic Co. Dist. Ct.
_ R96 Passaic Co. Ct.
_ R97 Passaic Co. Juv. Ct.
_ Salem County – Code S
_ S02 Alloway Twp. 1701
_ S03 Elmer Boro 1702
_ S04 Elsinboro Twp. 1703
_ S05 Lwr. Alloways Crk. 1704
_ S06 Pennsville Twp. 1705
_ S07 Mannington Twp. 1706
_ S08 Oldmans Twp. 1707
_ S09 Penns Grove Boro 1708
_ S10 Pilesgrove Twp. 1709
_ S11 Pittsgrove Twp. 1710
_ S12 Quinton Twp. 1711
_ S13 Salem City 1712
_ S14 Carney’s Pt. 1713
_ S15 Upper Pittsgrove Tp.1714
_ S16 Woodstown Boro 1715
_ S95 Salem Co. Dist. Ct.
_ S96 Salem Co. Ct.
_ S97 Salem Co. Juv. Ct.
_ Somerset County – Code T
_ T03 Bedminster Twp. 1801
_ T04 Bernards Twp. 1802
_ T05 Bernardsville Boro 1803
_ T06 Bound Brook Boro 1804
_ T08 Branchburg Twp. 1805
_ T09 Bridgewater Twp. 1806
_ T10 Far Hills Boro 1807
_ T11 Franklin Twp. 1808
_ T12 Green Brook Twp. 1809
_ T13 Hillsborough Twp. 1810
_ T14 Manville Boro 1811
_ T15 Millstone Boro 1812
_ T16 Montgomery Twp. 1813
_ T17 N. Plainfield Boro 1814
_ T18 Peapack-Gladstone 1815
_ T19 Raritan Boro 1816
_ T20 Rocky Hill Boro 1817
_ T21 Somerville Boro 1818
_ T22 S. Bound Brook Boro 1819
_ T23 Warren Twp. 1820
_ T24 Watchunbg Boro 1821
_ T95 Somerset Co. Dist. Ct.
_ T96 Somerset Co. Ct.
_ T97 Somerset Co. Juv. Ct.
_ Sussex County – Code V
_ V02 Andover Twp. 1902
_ V04 Branchville Boro 1903
_ V05 Byram Twp. 1904
_ V13 Hopatcong Boro 1912
_ V15 Montague Twp. 1914
_ V17 Newton Town 1915
_ V18 Ogdensbug Boro 1916
_ V19 Sandystone Twp. 1917
_ V20 Sparta Twp. 1918
_ V21 Stanhope Boro 1919
_ V23 Sussex Boro 1921
_ V24 Vernon Twp. 1922
_ V26 Wantage Twp. 1924
_ V28 Hamburg Boro 1909
_ V29 Hardystone Twp. 1911
_ V30 Franklin Boro 1906
_ V81 Jt. Ct. of Franklin
_ Boro, Hamburg Boro,
_ Hardyston Twp., Ct.
_ sits in Franklin Boro
_ V82 Jt. Ct. of Andover Boro 1908
_ Green Twp., Fredon Twp.
_ Ct. sits in Andover Boro
_ V83 Jt. Ct. of Franklin Twp. 1905
_ Lafayette Twp. Ct. sits
_ in Agusta
_ V84 Jt. Ct. of Hampton Twp.,1910
_ Stillwater Twp. Ct.
_ sits in Middleville
_ V95 Sussex Co. Dist. Ct.
_ Walpack Twp.
_ V96 Sussex Co. Ct.
_ V97 Sussex Co. Juv. Ct.
_ Union County – Code W
_ W02 Berkely Hgst. Boro 2001
_ W03 Clark Twp. 2002
_ W04 Cranford Twp. 2003
_ W05 Elizabeth City 2004
_ W06 Fanwood Boro 2005
_ W07 Garwood Boro 2006
_ W08 Hillside Boro 2007
_ W09 Kenilworth Boro 2008
_ W10 Linden City 2009
_ W11 Mountainside Boro 2010
_ W12 New Providence Bo 2011
_ N14 Plainfield City 2012
_ N15 Rahway City 2013
_ N16 Roselle Boro 2014
_ N17 Roselle Pk. Boro 2015
_ N18 Scotch Plains Twp. 2016
_ N19 Springfield Twp. 2017
_ N20 Summit City 2018
_ N21 Union Twp. 2019
_ N22 Westfield Town 2020
_ N23 Winfield Twp. 2021
_ W95 Union Co. Dist. Co.
_ W96 Union Co. Ct.
_ W97 Union Co. Juv. Ct.
_ Warren County – Code Y
_ Y02 Allamuchy Twp. 2101
_ Y03 Alpha Boro 2102
_ Y04 Belvidere Town 2103
_ Y05 Blairstown Twp. 2104
_ Y08 Greenwich Twp. 2107
_ Y09 Hackettstown Town 2108
_ Y10 N. Warren 2188
_ Y10 Frelinghuysen 2106
_ Y10 Harwick 2109
_ Y10 Hope 2111
_ Y10 Liberty 2114
_ Y10 Pahaquarry 2118
_ Y11 Harmony Twp. 2110
_ Y15 Independence Twp. 2112
_ Y17 Knowlton Twp. 2113
_ Y18 Lapatcong Twp. 2115
_ Y20 Oxford Twp. 2117
_ Y22 Phillipsburg Town 2119
_ Y23 Pohatcong Twp. 2120
_ Y24 Washington Boro 2121
_ Y26 White Twp. 2123
_ Y27 Mansfield Twp. 2116
_ Y81 Cent. Warren Jt. Ct.
_ for Franklin Twp.,
_ Washington Twp. Ct.
_ sits in Washington Twp.
_ Y95 Warren Co. Dist. Ct.
_ Y96 Warren Co. Ct.
_ Y97 Warren Co. Juv. Ct.
_ Other Court Locations – Code X
_ X01 N.J. Supreme Ct. Trenton
_ X02 N. J. SuperiorCt.-Trenton
_ X03 U.S. Magistrate Ct. – Brown Mills
_ X04 U.S. Magistrate Ct.,-Oakhurst
_ X05 U.S. Magistrate ct.-Newark
_ X06 U.S. Magistrate Ct.-Trenton
_ X07 U.S. Magistrate Ct.-Atlantic City
_ X08 U.S. Magistrate Ct.-Camden
_ Other States Code
_ Alabama AL Z01
_ Alaska AK Z02
_ Arizona AZ Z03
_ Arkansas AR Z04
_ California CA Z05
_ Colorado CO Z06
_ ConnecticutCT Z07
_ Delaware DE Z08
_ Dist. of Columbia DC Z09
_ Florida FL Z10
_ Georgia GA Z11
_ Hawaii HI Z12
_ Idaho ID Z13
_ Illinois IL Z14
_ Indiana IN Z15
_ Iowa IA Z16
_ Kansas KS Z17
_ Kentucky KY Z18
_ Louisiana LA Z19
_ Maine ME Z20
_ Maryland MD Z21
_ Maryland District Courts
_ Annapolis Z51
_ Hyattsville Z52
_ Marlboro Z53
_ Andrews Air Base Z54
_ Baltimore Z55
_ Hagerstown Z56
_ Salisbury Z57
_ Massachusetts MA Z22
_ Michigan MI Z23
_ Minnesota MN Z24
_ Mississippi MS Z25
_ Missouri MO Z26
_ Montana MT Z27
_ Nebraska NE Z28
_ Nevada NY Z29
_ New HampshireNH Z30
_ New Mexico NM Z31
_ New York NY Z32
_ Bronx Z91
_ Brooklyn Z92
_ Harlem Z97
_ Manhattan Z93
_ Queens Z94
_ Richmond Z95
_ Rochester Z98
_ Suffolk County Z96
_ N. Carolina NC Z33
_ N. Dakota ND Z34
_ Ohio OH Z35
_ Oklahoma OK Z36
_ Oregon OR Z37
_ Pennsylvania PA Z38
_ Philadelphia Z58
_ Rhode Island RI Z39
_ S. Carolina SC Z40
_ S. Dakota SD Z41
_ Tennessee TN Z42
_ Texas TX Z43
_ Utah UT Z44
_ Vermont VT Z45
_ Virginia VA Z46
_ Washington WA Z47
_ W. Virgina WV Z48
_ Wisconsin WI Z49
_ Wyoming WY Z50
_ Canadian Provinces Code
_ Alberta Z60
_ British Columbia Z61
_ Manitoba Z62
_ New Brunswick Z63
_ Newfoundland Z64
_ Northwest Territories Z65
_ Nova Scotia Z66
_ Ontario Z67
_ Quebec Z68
_ Prince Edward Z69
_ Saskatchewan Z70
_ Yukon Territory Z71
_ Other Foreign Codes Z80

WAYS TO HELP YOURSELF IN COURT

• Be on time
• Bring court documents
• Be respect respectful to court employees
• Be neat and clean
• Be honest
• Speak clearly
• Be brief and to the point
• Be relaxed and patient
• Be careful of your attitude and don’t lose your temper
• Bring someone who can interpret if possible
• When in court, always be quiet

NOTICE OF ADDRESS CHANGES

All parties to a particular case, whether you are the defendant or complainant, must notify the court of any change, correction or addition to(for example, an apartment number) your current address. All notices, sent by the courts are sent to the address of record. If your address is not correct or completely you may not be notified of your court date which could result in a bench warrant being issued (if you are the defendant) or dismissal of your case (if you are the complainant). DO NOT MERELY RELY ON HAVING YOUR MAIL FORWARDED.

As to traffic offenses, please be sure that any change of address is made with both Motor Vehicle Services and the Court.

When you need to correct or change your address with the court, it MUST BE DONE IN WRITING. Change of Address forms are available at the court house.

COURT CONTACT OR CORRESPONDENCE

The individual directly involved with the case, rather than a relative or friend, should contact the court. This will help speed inquiries and allow the court staff to better serve you.

It is imperative when writing or calling to have your case number available. Please put your case number on all correspondences you are sending to the court – especially payments.

If you do not have your case number, please be sure to list your full name, including any other name you may have used, your date of birth, address that was listed on the complaint or ticket at the time that matter was disposed of, the type of charges filed, the date those charges were filed, the last date you appeared in court and if you are the defendant, your driver’s license number.

PAYMENT OF TRAFFIC OR CRIMINAL FINES OR PENALTIES

Payments may be made by mail by sending a check or money order to the Court. Please do not send cash. All checks or money orders should be made out to the respective municipal court. Many courts accept credit cards. It is important to remember to list the case numbers on your check or money order so that your account (on that case) will be properly credited.

If you are sending cash payment with someone else, please be sure to let him or her know what the case number is. All persons making payments in person at the Payments Windows will receive a receipt. If you are paying by mail or a drop box and want a receipt, enclose a stamped, self-addressed envelope with your payment and we will mail it to you.

FOREIGN OR SIGN LANGUAGE INTERPRETERS

Interpreting services can be provided upon notification that a particular defendant or complainant requires an interpreter. Please notify court staff as soon as possible of this need and the type of interpreter services required. Please be sure to include in your notification, any special language dialect required

YOUR RIGHTS IN MUNICIPAL COURTS

The Municipal Court(s) in the entire State of New Jersey wants you to receive a full and fair hearing. Accordingly, you will find the following explanations helpful.

BASIC RIGHTS OF A DEFENDANT IN THE MUNICIPAL COURT

• You are presumed innocent until prove guilty beyond a reasonable doubt.
• You have the right to be represented by an attorney.
• You may retain a private attorney or may apply for appointment of the Public Defender.
• You have the right to obtain a postponement for good cause.
• You have the right to decide whether or not to testify in your own defense.
• You have the right to call witnesses or present evidence in your defense.
• You have the right to appeal if you are not satisfied with the outcome in Court.

COURT SESSIONS

When you arrive at the courthouse, you should go directly to the appropriate courtroom. If you are not sure what courtroom you are supposed to be in, please see one of the Court Attendants and they will direct you.

Prior to the start of the court session, the clerk who works with the Judge on the bench will call the calender list. As your name is called, it is important that you identify yourself to the bench clerk. If your name was not called, it is important that you let the clerk know this as well. If you arrive late, it is important for you to remain in the court room until your case is called or the judge asks if there are any other matters.

All court proceedings are tape recorded as required by Court Rules. It is important for you when asked to speak, to identify yourself and to speak slowly and directly into the designated microphone. It is essential for persons both in and out of the courtroom to remain as quiet as possible so that the tapes will be clear.

Each case is heard and considered separately, so it is impossible to predict the length of time you will be in court. At the beginning of the court session, the Judge will give an opening statement explaining the court procedures and general rights in Municipal Court proceedings.

INDICTABLE CHARGES

The more serious criminal offenses, called indictable offenses are scheduled for an “arraignment or first appearance” in the Municipal Court. The charges will be explained and your right to an attorney will be discussed. These charges are forwarded to the County Prosecutor.

The County Prosecutor will decided whether to present the case to the Grand Jury. If the Grand Jury votes an indictment, the case will be heard in the Superior Court. The County Prosecutor can decided to return the case to the Municipal Court by amending or downgrading the original charge to a less serious one. Your notice to appear at the Musical Court on any such case will be mailed to you. The County Prosecutor can also decide to administratively dismiss the charges.

ARRAIGNMENTS OR FIRST APPEARANCES

The first time the defendant will appear before the Judge to be advised of the charges filed against him or her and what the possible penalties can be is called an arraignment or first appearance. In some instances, only the defendant will be required to appear at the first date. If this is the case, an opportunity to present both defendants’ and complainants case will be scheduled for a future date.

In other instances both the defendant and complainant are noticed to appear on that first date. If this is the case, the Judge may proceed with a plea or a trial. At this appearance, the Judge may also order all parties to Mediation.

MEDIATION

The judge may order the defendant and the complainant to try to settle their differences through mediation. This is a confidential process in which a court appointed trained mediator would meet with both parties to try to resolve your dispute. The judge will decide if your case is eligible for mediation.

If mediation is ordered, all parties will be directed to the Information windows at the court, where they will receive a copy of the mediation order and information about their mediation date. If a settlement is reached, the mediator will notify the Court and no further appearances will be necessary unless the settlement is violated. If a settlement is not reached, you will be notified by the Court by mail of your new court date.

WHEN A COURT APPEARANCE IS REQUIRED

All criminal matters will require a court appearance. Certain serious traffic violations also require a court appearance. For traffic or other violations if the “Court Appearance Required” both is checked, you will be required to appear in court even if you want to plead guilty. This is true even if the violation is listed on the Statewide or Local Violations Bureau Schedule.

TRAFFIC TICKET

You will also be required to appear in court if you:

• wish to have a trial.
• the personal injury box on your ticket is checked.

PLEA OF GUILTY BY PAYMENT

Certain type of offenses like local ordinances, fish and game violations and payable traffic violations may be paid at the Court or by mail without having to make an appearance before the Judge. If you wish to plead guilty and give up your right to a hearing for such a violation, you may do so as long as the court appearance box is not checked and the violation is listed on the Statewide or local violations Bureau Schedule. If the penalty is not listed on the back of the ticket, please contact the court office.

To dispose of your case, complete the APPEARANCE, PLEASE AND WAIVE section on the back of your ticket and bring it or mail it together with payment in the correct amount to the court. Payments received after the appearance date listed may be assessed additional penalties.

ENTERING A PLEA OF NOT GUILTY IN A TRAFFIC,
FISH AND GAME OR BOATING CASE.

If you intend to please not guilty to the offense charged in the summons and you want to have a trial, you must notify the Court of your intention at least three (3) days prior to the date listed on the front, bottom of the summons.

If you fail to make this notification, it may be necessary for you to make two appearances because you will not be listed on the trial calendar and the trial preparations will not be complete.

WHAT HAPPENS IF THE DEFENDANT WISHES
TO PLEAD GUILTY. (in court appearances)

When you plead guilty, you are giving up your right to have a trial. You admit that you have violated the law. The Judge will ask you questions to be sure that the plea is acceptable to the Court.

The arresting officer or complaint may explain the circumstances of the violation and the defendant may explain any extenuating circumstances. The Judge will then sentence the defendant.

WHAT HAPPENS IF THE DEFENDANT WISHES
TO PLEASE NOT GUILTY. (court appearances required)

If you plead not guilty, the Judge may have the case rescheduled for a trial date. The Judge will ask you if you are going to have an attorney represent you. You may represent yourself without the services of an attorney. That is called Pro se. You may tell the Judge that you are also going to hire a private attorney.

TRIAL DATES

At the trial date, the Judge will take testimony from all witnesses under oath. There are no jury trials in the Municipal Court. The defendant and his attorney, if represented, will sit at one table. The Prosecutor will sit at the other table. Witnesses may be asked to stay outside the courtroom until it is their turn to testify. The Prosecutor will go first and will present any witnesses or evidence needed to prove the charge against the defendant. Each witness will either swear or affirm to tell the truth. As each witness for the prosecution testifies, the defendant or his attorney, if represented, will have an opportunity to ask questions about what was testified to. This is called cross-examination.

Once the prosecution is finished, it will be the defendant’s turn. The defendant can present witnesses or other evidence to dispose the Prosecutor’s case. The defendant does not have to provide any information and does not have to testify. It is up to the prosecution to prove the case “beyond a reasonable doubt.”

When all the witnesses have testified, the defendant or his attorney may tell the Judge why the case not proven against the defendant.

The Judge after hearing all of the testimony and witnesses will make the decision whether the case has been proved beyond a reasonable doubt. If the Judge finds the defendant “Not guilty.” The case is over.

If the Judge finds the defendant “Guilty,” the Judge will sentence the defendant.

SENTENCING

When you plead guilty or are convicted of a criminal, traffic or ordinance violation after a trial, the Judge will determine your sentence in Court. At sentencing, the Judge will explain to the defendant the type of sentence and the provisions of that sentence. IT IS IMPERATIVE THAT YOU LISTEN CAREFULLY AND WRITE DOWN THE PROVISIONS OF THE SENTENCE.

It is important to raise any issues with respect to your sentence with the Judge at this time. Once the Judge authorizes any provision of the sentence, it is so ordered.

Full compliance will be expected. Failure to comply with the provisions of a sentence, for example, failure to report to trial, or failure to comply with the Intoxicated Driver School, will result in the issuance of a bench warrant for your arrest. Failing to pay a fine even on a criminal offense will result in the suspension of your driving privileges in New Jersey.

FINES, COSTS AND OTHER PENALTIES

The Judge will list the different fines, costs, penalties and assessments you will be responsible for paying. The Judge will expect payment in full. This is your opportunity to discuss a payment plan with the Judge if you cannot pay the fine in full. If the Judge authorizes a time payment agreement, full compliance with the payment plan will be expected.

TYPES OF SENTENCES

The Judge may order a jail sentence, probation, drivers license suspensions, attendance at special schools or community service.

TRAFFIC VIOLATION POINTS

The number of points accompanying any traffic violation is determined by Motor Vehicle Services. The court does not tally nor track the number of points of any given offense. For any information covering points you should contact Motor Vehicle Services.

For defendants who are not New Jersey residents, you should contact your own state’s Division of Motor Vehicles for information regarding points or the effects of surcharges.

MOTOR VEHICLE ACCIDENTS

Financial and other personal losses arising out a traffic accident are not heard or considered by the Municipal Court. Those losses may be pursued in civil court.

PARKING TICKETS

Partial payment plans are not available for payment of parking tickets. If your driving privileges have been suspended for failure to satisfy a parking violation, the suspension will remain in effect until the summons is complete satisfied.

RESTORATION OF DRIVING PRIVILEGES

If your driving privileges are suspended as a result of a non payment of fines, penalties or assessment, you can have them restored upon payment in full of the amount of this Court and a payment of your restoration fee to Motor Vehicle services.

You will be required to provide proof to Motor Vehicle Services of your payment. Upon request, a receipt can be provided to your for this purpose. Please note that if you are suspended as a result of a sentence or are also suspended as a result of another court’s action, you will remain suspended until all the suspensions requirements have been met.

APPEALS OF CASES

If a defendant does not agree with the outcome of the case, the defendant may appeal to the Superior Court. Representation by an attorney is not required for an appeal. The defendant can request that the sentence imposed be stayed pending the appeal. The Municipal Judge will decide whether to stay the sentence.

An appeal must be filed within twenty (20) days of the Judge’s decision. Forms are available at the Municipal Court to initiate an appeal without represent of an attorney A non-refundable filing fee of $75 payable to the Superior Court of New Jersey, transcript deposit of (Usually around $300) payable to the respective Municipal Court.

EXPUNGEMENTS

An expungement is the process by which records of arrests and/or convictions are destroyed and sealed after the expiration of a pre-set time period. This is usually a one time opportunity.

Attorney representation is not required to file for an expungement. A copy of the sample forms are available at the Municipal Court if you wish to file for an expungement yourself.

Please note that once an expungement has been ordered, the records are sealed however, for background checks certain law enforcement agencies may still be able to access the existence of the charge or conviction. You should check with an attorney if you have any questions. Additional information is available under New jersey Statutes 2C:52-1. Municipal ordinances convictions can be expunged after two, and regular disorderly persons offenses, commonly known as 2C convictions can be expunged only after five years from the date of conviction.

POSTPONEMENT POLICY

A postponement is asking for a delay of your court date for a specific reason. Requests for postponement of your court date must be received in writing at least days prior to your scheduled date. Requests with less than days notice may be approved if all parties can be contacted. If you are represented, your attorney will make the request.

Your request must include your name, the ticket or case number the date scheduled and time, description of the charge(s) and any cross complaints or co-defendants with their case numbers and dates and a telephone number where the court can reach you. You must also included a detailed description of the reason why you are requesting a postponement.

A copy of your request must be sent to the Municipal Prosecutor and any other lawyer that may be involved. A request for a postponement does not automatically mean you will receive one. To find out if your postponement has been granted by the Judge, contact the appropriate scheduling clerk – either criminal or traffic.

The Municipal Prosecutor and Defense Attorneys are responsible for notifying their respective clients and/or witnesses of the postponement. All requests for postponements received with hours will be attached to the case and reviewed by the Judge while on the bench.

BAIL PROCEDURE

The purpose of bail is to ensure the defendant’s appearance (or the appearance of the person for who bail is posted) at each and every court appearance. Bail for criminal or traffic offenses may be posted at one of the locations listed below. The defendant must be present to post bail, (therefore it will be necessary to ascertain the location of the defendant. That location will determine where you will post the bail. Bail may be posted at the following locations:

• The Municipal Court in the jurisdiction in which the defendant resides.
• The Municipal Court where the case was initiated.
• The Municipal Court where the case is being heard.
• The Police Department where the defendant is arrested.

PRIOR TO COMING TO POST BAIL, YOU SHOULD

• Check the location of the defendant to determine the location you will go to, to post the bail (If the defendant has multiple bails or warrants you may be able to post all of the bails at the one location).
• Find out the amount of the bail and any provisions of the bail and find out whether any filing fees are required.

WHEN YOU COME TO POST BAIL, YOU SHOULD

• Bring the exact amount of bail money required.
• Bring proper identification.

Checks and money orders are accepted for bail. They must not be starter checks or third party checks. The checks must be made out to the respective Court or the bail or warrant. The identification of the person posting bail must match the name and address printed on the check. Checks are not permitted to be accepted on certain charges.

In certain instances, a bench warrant may be ordered for a defendant who fails to comply with one or more provisions of their sentence, necessitating the posting of bail.

If a defendant fails to appear for any court date, bail money posted may be forfeited and a bench warrant for the person’s arrest may be ordered by the Judge. It is essential that the person who is related on bail know the date and time of his/her appearance is there.

If a defendant or the surety (the person who posted the bail money and signs the bail receipt as surety is the legal owner of the money the defendant can also be the surety) address changes, it his/her responsibility to notify the Court in writing of any changes. Specific procedures for refund and assignment of bail may be obtained by the calling the court.

A defendant can always have his bail applied to pay his/her court fines. A defendant can’t have the bail applied towards his/her fines, if someone else posted the bail. That person must individually sign over the bail.

A DWI charge is only traffic offense only in New Jersey. If a person is convicted for a DWI, then this will not give you a criminal record. Since DWI is considered only to be a traffic offense only, there are no jury trials for DWI cases in New Jersey.

Since DWI is not a criminal offense you are not finger-printed. Therefore, the arrest record will not show up in any criminal data base. If you are convicted in New Jersey of DWI, then the conviction will only show up in the Motor Vehicle Commission records.

In most of the other states a DWI offense is a criminal charge. If you live in another state and if you are convicted of DWI in New Jersey, the conviction will transfer to your home state “administratively,” but not criminally. In simpler terms, other than a probable additional loss of driving privileges in your home state, you will not be prosecuted again for a criminal offense. However, it will count in the future as an enhancing factor if you are charged in your home state with a subsequent DWI.

When a DWI driver is arrested, then his vehicle must also be impounded. This law is called “John’s Law.” More specifically, whenever a person has been arrested for a violation of DWI, or for refusal, then the police must impound the vehicle for at least twelve hours. The DWI driver must pay a reasonable fee for the towing and the storage of the vehicle. After the twelve hour period, the driver or his agent may reclaim their vehicle. Any person who picks up the DWI driver at the police station, must also promise that they won’t permit the DWI driver to drive anymore on that day or evening. The police must provide this person with a written notice of the civil and criminal penalties if he or she permits the DWI driver to operate a motor vehicle.

If you have been convicted of DWI anywhere, then you may be facing enhanced penalties for loss of license, fines, and incarceration. If you have a prior conviction or convictions from another State, these “priors” may be counted against you for sentencing purposes in New Jersey. The conviction must be “of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact.” If the conviction satisfies this standard, then the prior conviction “shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than .08%.” Depending on the circumstances of your out of state prior convictions, there may be arguments to avoid enhanced penalties in New Jersey if you are convicted on the current charge.

One of the best tools that a DWI defense lawyer has is called the ten-year step down provisions. For multiple DWI offenders the statute provides;

A person who has been convicted of a previous violation of this section need not be charged as a second or a subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section on a second or a subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

This provision basically provides that if there is a ten-year gap between DWI offenses, then the DWI driver will be sentenced as a first time offender. A driver can only use the ten-year step down break one time. The ten-year step down does not apply to a third time DWI offense.

Much confusion occurs with older multiple DWI convictions. A case called State v. Burroughs, 349 N.J. Super. 225 (App. Div. 2002) is the current law on this sentencing issue. The court in the Burroughs case held that although more than ten years elapsed between Burroughs first and second drunk driving offenses, where less than ten years elapsed between his second and third drunk driving offenses, he must now be treated as a third offender. Burroughs had convictions in 1982, 1998 and then in 2000.

The court further stated: “But once having been granted such leniency, the defendant has no vested right to continued step-down status where he commits a subsequent drunk driving offense. The earlier offense is not forgiven. Having been granted leniency by virtue of the infraction-free lapse of time between the two earlier violations, the offender has received his reward for good conduct and is entitled to no further consideration.” Id. at 227.

A fourth or greater conviction will always be treated as a third conviction for sentencing purposes, regardless of dates of conviction. For example, convictions from 1985, 1986 and 1990, and now a charge in 2006 would result in potential fourth offender status, with a pending penalty of 10 years loss of New Jersey driving privileges, fines, surcharges, and 180 days in county jail, 90 of which are mandatory in jail, and credit for up to 90 days in an inpatient alcohol or drug rehabilitation facility.

As part of any DWI defense, prior convictions should be reviewed to see if any of the prior cases can be reopened and challenged to determine if the convictions can be overturned. If they can, a third offense may then be treated as a second offense, or a second offense may be treated as a first offense. This process is called post-conviction relief.

What are the realities of performing Field Sobriety Tests?

The reality is that you will be asked to perform several field sobriety tests in less then ideal conditions when you are extremely nervous about being arrested. The National Highway Traffic Safety Administration has admitted that “Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results.” But they do not indicate what is meant by “slight variations from the ideal” and how much “affect” that will cause. Even though the government has admitted this, police officers have consistently testified contrary to this statement, always stating the specific sidewalk, street, or highway shoulder they had my client(s) perform these tests did not affect how they performed, regardless of traffic, weather conditions, or photographs showing the uneven, rocky surfaces.

Furthermore, once the officer asks you to exit your car and perform these tests, he is already suspicious that you are intoxicated, thus detracting from him being fair and unbiased. When the police officers have their academy training, and citizens volunteer to go the police training facility, get to drink for free, and then let officers give them field sobriety tests, several aspects of the “drinking school” will be different from your being asked to do these tests in the “field.” First, those citizens are not nervous or scared about being stopped by the police. Second, they are in a controlled environment, not outside with all the distractions, and third, they are not in fear of being arrested. These three factors alone give many non intoxicated people difficulty in passing field sobriety tests.

Ideal conditions would be to perform the tests on a flat, smooth surface, inside with proper lighting, when you are not tired, with an officer who knows how to, and does, perform the tests in the prescribed standardized manner. In reality, the majority of the time people are asked to perform field sobriety tests under some or all of the following conditions:

• early in the morning
• nervous & scared of being arrested
• tired from a long day
• poor lighting conditions
• poor weather conditions (wind, cold, rain, etc.)
• on the shoulder of a highway/street
• standing on an uneven/slanted/cracked surface
• dirt & debris on the surface
• traffic driving by
  • headlights are distracting you, causing you to notice the cars more, and headlights can affect the HGN test!
  • gusts of wind caused by the cars when you are on the shoulder of the highway (wind in your eyes can affect the HGN test, and your balance!)
  • semi’s blasting by when you are on the shoulder of the highway (extremely unnerving when I stand on the shoulder during the daytime, taking photos of the shoulder where clients have been stopped)
• police car strobe lights flashing, thus distracting your vision
• an officer standing in front of you shining a flashlight into your eyes
• an officer not following the prescribed, standardized manner in giving the tests; and/or
• an officer who has prematurely made up his mind you are intoxicated and is only looking for verification (i.e. he won’t give you a fair and unbiased evaluation during the tests).

Clearly, nobody could prepare themselves for conditions such as these. And remember, these Field Sobriety Tests may lose their sensitivity if repeated several times. Thus, the police want to evaluate you the very first time you attempt the tests, and don’t you expect to see the most difficulty in performing a task the very first time you attempt it?

What Are Field Sobriety Tests?

Field Sobriety Tests (FST’s) are psycho-physical tests used to assess a person’s physical and/or mental impairment. These tests focus on the abilities needed for safe driving. Most of the more reliable psycho-physical tests are known as “divided attention” tasks. They require a person to concentrate on more then one task at the same time. To safely drive a car, a person needs to be able to simultaneously control steering, breaking, and acceleration; react to constantly changing driving environment; and perform many other tasks.

Alcohol affects one’s ability to adequately divide attention, thus causing drivers to concentrate on more difficult tasks while ignoring simpler ones (i.e. ignore a traffic signal while concentrating on one’s speed). Even if impaired, most people can successfully concentrate on a single task fairly well, but when impaired, most drivers cannot successfully divide their attention between multiple tasks at once.

Divided attention tasks are designed to evaluate mental and physical capabilities a person needs to safely drive a car. They include information processing; short-term memory; judgment and decision making; balance; steady, sure reactions; clear vision; small muscle control; and coordination of limbs. A good FST will combine any two or more of these capabilities simultaneously. A test must also be reasonably simple for the average non-intoxicated person to perform.

The most common FST’s used by the police include the three standardized tests consisting of the Horizontal Gaze Nystagmus tests, Walk & Turn test, and the One Leg Stand test. These three tests have been validated as reliable indicators of intoxication, although they are not 100% accurate. Other commonly used, but non-standardized, tests include counting backwards, saying the alphabet (or a portion of it), finger count, and the stationary balance (Rhomberg) tests.

In reference to the three standardized FST’s, the government has admitted, and it is printed in the police officers DWI manual, that “IT IS NECESSARY TO EMPHASIZE THIS VALIDATION ONLY APPLIES WHEN: THE TESTS ARE ADMINISTERED IN THE PRESCRIBED STANDARD MANNER; THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECTS PERFORMANCE; THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE. IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.”

Horizontal Gaze Nystagmus (HGN)

This test refers to the involuntary jerking of the eye as it gazes to the side. When this occurs, the person is unaware of the jerking, and cannot control it. This involuntary jerking becomes noticeable as persons’ blood alcohol increases. This is the most reliable of the FST’s. However, nystagmus is a natural, normal phenomenon. Alcohol and certain drugs do not cause this phenomenon.

When the HGN test is administered, the officer hold a stimulus (usually a pen) 12-15 inches in front of you eyes and asks you to follow the stimulus with your eyes, without moving your head. The officer will always start with the left eye and they are looking for 3 specific clues:

1. Lack of Smooth Pursuit: As the eye moves from side to side, does it move smoothly or does it noticeably jerk (bounce)? The jerking is similar to how windshield wipers jerk across a dry windshield. There is a standardized pace the officer is to have the eyes move side to side. From the center of the face, they are to move the eye all the way out to the side in approximately 2 seconds, then 2 seconds back to center, approximately 2 seconds to the other side, and 2 seconds back to center. They are to repeat the procedure. If they have the eyes move too fast, not only are they performing the test improperly, the government has admitted that quick movement of the eyes may cause nystagmus.
2. Distinct Nystagmus at Maximum Deviation: When the eye moves as far to the side as possible and is kept in that position for several seconds, is there distinct jerking (bouncing) of the eye. The eye is to be moved all the way to the side, and kept there a minimum of 4 seconds. Interestingly enough, some people exhibit slight jerking of the eye at maximum deviation even when unimpaired! Also, if the eye is moved to the side too quickly, this may cause the nystagmus.
3. Onset of Nystagmus Prior To 45 Degrees: As the eye moves towards the side, does it start to jerk (bounce) before it reaches a 45-degree angle? When moving the eye out to 45-degree’s, the movement of the eye should take approximately 4 seconds to reach 45-degrees. It is important to take the full 4 seconds when checking for onset. If the stimulus is moved too fast, the officer could take your eye beyond 45 degrees, or if the eye is moved to 45-degrees too quickly, this may cause the nystagmus. The maximum number of clues in each eye is 3, for a total of 6 clues. The original research has shown that if 4 or more clues are present, the person is intoxicated. This test has been shown to be accurate 77% of the time; therefore, it is inaccurate 23% of the time!

Walk and Turn

This divided attention test consists of the instruction phase and the walking phase. During the instruction phase, the person must stand with the right foot directly in front of the left foot with the heel and toes touching, keeping their arms at their side, while listening to the instructions. One’s attention is divided between keeping their balance and listening to and remembering the instructions. The instruction phase of the test takes at least 45 seconds to complete. If you use yours arms for balance in this awkward position of step out of the position, it will be taken as a sign of intoxication.

During the walking phase, the person takes 9 heel-to-toe steps, turns in a prescribed manner, take 9 heel-to-toe steps back, while counting the steps out loud. The steps are taken down a straight line, and if an actual line is not present, the person is instructed to walk down an imaginary line. The walking phase divides a person’s attention between keeping their balance, counting out loud, taking the proper number of steps, turning in the prescribed manner, while keeping their arms at their side.

The officer is looking for 8 specific clues:

1. Can’t balance during instructions
2. starts too soon
3. stops while walking
4. doesn’t touch heel-to-toe
5. steps off line
6. uses arms for balance
7. loses balance on turn or turns incorrectly
8. takes the wrong number of steps

The original research has shown that if 2 or more clues are present, the person is intoxicated. This test has been shown to be accurate 68% of the time; therefore, it is inaccurate 32% of the time!

One Leg Stand

This divided attention test consists of the instruction phase and the balance & counting phase. During the instruction phase, the person must stand with their feet together, keeping their arms at their side while listening to the instructions. One’s attention is divided between keeping their balance and listening to and remembering the instructions.

During the balance and counting phase, the person must raise one leg approximately 6 inches off the ground, arms at their side, toes pointed out and looking at the pointed toes, and keeping both legs straight. While looking at their toes, they are to count 1001, 1002, 1003, etc. until they are told to stop. The test is to last for 30 seconds and the officer is supposed to time the test. During the test, if at anytime a person puts their foot down, they are instructed to pick it back up and continue counting where they left off.

The officer is looking for 4 specific clues:

1. sways while balancing
2. using arms for balance
3. hopping
4. putting foot down

The original research has shown that if 2 or more clues are present (i.e. putting foot down 1 time and having a couple seconds of sway), the person is intoxicated. This test has been shown to be accurate 65% of the time; therefore, it is inaccurate 35% of the time!

Counting Backwards (not a validated test)

This divided attention test requires a person to count out loud a set of numbers in reverse order. For example, the person is instructed to count starting with 56 and ending with 28. This divides the person’s attention because they have to remember what number to start with, count backwards correctly, and remember what number to stop on. Anything other than 100% perfection will be viewed as a sign of intoxication.

Alphabet (not a validated test)

This test requires a person to recite a portion of the alphabet. For example, the person is instructed to start with a specific letter, D, and stop at a specific letter, T. This divides the person’s attention because they have to remember the specific letter to start with, say the letters in sequence, and remember the letter to stop with. Anything less than 100% perfection will be viewed as a sign of intoxication.

Finger Count (not a validated test)

This test required a person to touch the tip of each finger in succession to the tip of their thumb, up and back, while counting 1, 2, 3, 4, .. 4, 3, 2, 1. They must touch fingertips while not counting out of order. Anything less then 100% perfection will be viewed as a sign of intoxication.

Stationary Balance (i.e. Rhomberg) (not a validated test)

This test requires a person to stand with heels and toes touching, leaning their head back to look up at the sky or ceiling, holding their arms out to the side (like an airplane) and estimate 30 seconds. The officer is looking for any unnatural sway. I have had officers testify from a range of anything more than ½ inch to 1 inch from center is too much sway and must be caused by intoxication. Also, if your estimation is not close to 30 seconds, this will be viewed as a sign of intoxication.

Try these Field Sobriety Tests at home with someone evaluating you and contact me with your results.

Being sober, how many tests did you fail?

Even though officers have testified that all non-intoxicated people should be able to successfully perform Field Sobriety Tests (i.e. 100% accurate), the National Highway Traffic Safety Administration, through their extensive research, has acknowledges that: – these tests lose their sensitivity if repeated;- sober people have difficulty with balance;- leg problems can affect these tests;- back problems can affect these tests;- middle ear problems can affect these tests;- weight can affect the tests;- age can affect the tests;- footwear can affect theses tests; and- weather conditions can affect the tests.

If the driver operates his or her motor vehicle while on the revoked list for a drunk  driving conviction, then he or she will face enhanced punishment under N.J.S.A. 39:3-40. For a first offender, the driver will lose his or her ability to register motor vehicles in New Jersey. Such a driver will also be subject to enhanced fines, license loss and a mandatory jail term.

If a driver is caught and thereafter convicted, the court must;

• Fine you $500.
• Suspend your driving privileges for one to two years.
• Order your imprisonment in the county jail for 10 to 90 days.

If you have an accident and someone is hurt while your license is suspended then you must also serve a mandatory 45 day jail sentence.

Appeals

A driver can appeal their case to the local county Superior Court. In many cases an appeal is the best way a driver can win their case. There is a lot less political pressure to convict DWI drivers at the Superior Court, than in the local Municipal Courts. However, DWI appeals can be very expensive. The DWI driver also has to pay for the transcripts of the trial and this can costs hundreds of dollars.

B.A.C. Readings

This is the acronym for blood alcohol concentration. The alcotest machine determines how alcohol is in the driver’s system. The lingo is called “B.A.C.” readings.

Breathalyzer

This is the machine that the cops use to test the driver’s blood alcohol concentration. These machines are being phased out, and in a few years they will be outdated, and they are no longer used.

Bankruptcy of Surcharges

Surcharges can only be discharged in a Chapter 13 bankruptcy. Surcharges can’t be discharged in a Chapter 7 bankruptcy. If a driver is stopped for driving while suspended for failure to pay surcharges, then there is an additional $3,000 surcharge that is assessed.

Bench Warrant

If you do not appear at court, then the court will issue a bench warrant. The judge will order that the police go to the driver’s home and pick him up. Moreover, many times the bench warrant will be activated if the driver is stopped at a later time by another police officer. The driver will then be taken to the local county jail.

Blood Tests

In many hard core DWI cases especially in accident cases, the police will make the driver take a blood test. The driver is taken to the local hospital and a nurse gives him a blood test. The blood test will also give the driver his B.A.C. reading.

“Blowing Off” Tickets and Moving to Another State

A driver must beware of ignoring tickets by simply moving to another state. Eventually the new state will become aware that the driver is suspended in New Jersey. Most states are part of an interstate compact agreement. Therefore, all of the states are connected by the internet, and all states keep track of each other drivers. In short if a driver does not pay his N.J. tickets, eventually, the new state will not renew the driver’s license, because it is suspended in New Jersey.

Collateral Consequences

After a driver is convicted of DWI then there are many additional penalties that will be imposed. The driver will have their automobile insurance doubled, he will receive heavy duty insurance surcharges from the MVS, and his ability to obtain many different types of jobs will be impaired.

Conditional Driver’s License

New Jersey does not have a conditional driver’s license as some other states have. If you lose your driver’s license in New Jersey, then you can’t drive at all, even if you are only driving to work.

Discovery

One of the most important part of a DWI case is called “discovery.” Here the DWI driver is permitted to get all copies of the police reports, and the info about the breathalyzer machine. Sometimes it is amazing what the discovery reveals about the police officer’s training, and the functioning of the alcotest machine.

DMV Hearing

If a driver gets 12 or more points the MVS will issue an administrative suspension. The typical suspension period is for 180 days. The driver can request a MVS hearing with a hearing officer. At the hearing, most of the times the suspension can be reduced to 30 days or less. The hearings are held at the MVS regional offices.

Driver’s Abstract

This is a report of a driver’s history. This report can be obtained by the MVS for a fee of $10. It is always a good idea to get a copy of your MVS record in any municipal court case. Sometimes, old offenses may reappear at your case, and they may trigger jail time. It is astonishing how some drivers forget some very serious motor vehicle offenses that they have committed.

Field Sobriety Tests

These are the physical tests that the police make a DWI driver perform after they are stopped. These tests include the one legged stand test, the walk and turn test, the sway test, and the finger to nose test. Quite often the tests are not administered in a fair manner to the DWI driver. These field sobriety tests are also known as psycho-physical tests.

FTA

If a driver does not appear at court to fight his ticket, then the court will issue an FTA. Normally, the driver will be noticed, and he will be given a chance to appear at a rescheduled court date. The court will assess an additional fine of $50 to $100 for the driver failing to appear.

Insurance Eligibility Points

If a driver is busted for DWI then he will also recieve insurance eligibility points. These points for the most part are the same as point violations.

Intoxicated Driver Resource Center

After a DWI driver is convicted then he must also “serve time” at the IDRC. This is also known as the drunk tank. Here the DWI driver will attend seminars and watch videos that explain the perils of drinking and driving. In some cases the IDRC seminar will really make an impression on the driver and he will never drink and drive again. However, tragically in other cases most drivers can attend a years worth of seminars, and they will still drink and drive.

Motor Vehicle Points

A driver can receive to 12 points on his N.J. license. Every time a driver is convicted of a traffic offense, he is assessed points, and the records are then sent to the MVS in Trenton, N.J. Once a driver obtains 12 points he gets a notice that he will receive an administrative suspension for 180 days.

Municipal Ordinance

Quite often a driver will by charged with disorderly people’s offense. A good lawyer will try to get the charges downgraded to a municipal ordinance. This type of charge will not give a person a criminal record and it is not searchable on any criminal record databases.

Payment Plan of Fines

Quite often the fines are outrageous for traffic cases. The municipal court judge will permit a driver to pay the fines over time, if after review of a financial disclosure, the driver proves that he can’t make the payments. Each municipal court judge has their own “collection” policies. Therefore, it is advisable for all drivers to come to court with at least $200 to make payments. A payment of $200 will show the court some respect for the seriousness of the proceeding.

Payment of Fines by Credit Card

Some municipal courts permit drivers to pay fines by credit card. However, this practice varies from court to court. Always call the court before the hearing, to assess if the court will accept a credit card. This can be a great way to earn frequent flier miles!

Refusal to Submit to Breath Test

This is a charge that a driver receives when he refused to take the breath test.

Revocation

Your license or privilege to drive is canceled. To get a new license, you must re-apply to the Motor Vehicle Services (MVS) once the revocation period is over. A bad driving record or refusing to meet MVS requirements may cause your application to be denied.

SLAP Programs

This is a program that permits drivers to perform their jail time by performing community service. One day of jail time equals six hours of community service

Suspension

Your license is taken away for a period of time before it is returned to you.

Temporary Driver’s License

Quite often a driver will get to the municipal court by driving their car. At court the driver may have his license immediately suspended. A municipal court judge often grants a driver who has just lost their driver”s license, a temporary one hour license. This will permit the defendant to drive home. Remember a temporary license is just what it says – temporary. It should not be abused.

Work Release Program

In most counties, they have work release programs. This means that a driver can go to his regular job in the day time, and he has to sleep at the jail.

Wristlet Program

In some counties the jails will permit drivers to serve their time by home confinement. The driver will also have to wear a wristlet monitor. During the day the driver will have to perform community service by raking leaves, picking up garbage, and by performing other fun tasks.

The New Jersey Merit Rating Program, created by N.J.S.A. 17:29A-35 requires Motor Vehicle Services to collect insurance surcharges from motorists whose driving records include certain motor vehicle offenses. The surcharges are in addition to any court-imposed fines and penalties, or any premium or surcharge fees assessed by insurance companies.

Surchargeable events include alcohol and drug related offenses, regulatory offenses such as driving without a license, driving without valid insurance or driving while suspended, and accumulating six or more points in a period of three years or less. These surcharges are assessed each year for three years. (Please note that point credits are not considered when assessing surcharges). All surchargeable offenses are billed as they appear on your motor vehicle record. Motor Vehicle Services does not have the authority to reduce your surcharge payments or change any court-reported violations.

Revenue generated is used to repay $705 million in bonds sold to eliminate the debt of the Market Transition Facility (MTF). The MTF provided auto insurance to those unable to obtain coverage in the voluntary market. Part of the revenue is also designed for alcohol rehabilitation for drunk drivers.You are responsible for paying the surcharge even if you move out of NJ. The surcharge is imposed regardless of your current license, registration and/or insurance status.

SURCHARGEABLE EVENTS

DRUNK DRIVING – A drunk driving charge costs a driver a significant amount of money in surcharges. The surcharge for a drunk driving violation is $1,000 a year for three years. A surcharge of $1,500 a year will be charged for a third or subsequent violations.

POINT VIOLATIONS – If a driver accumulates six or more points in a period of three calendar years or less, then the driver must pay an insurance surcharge of $100 for the first six points, and $25 for each additional point. The point surcharge will remain in effect as long as the driver has six points on his driving records.

OTHER SURCHARGEABLE EVENTS;
Unlicensed Driver – $100 a year for three years.
Driving While Suspended – $250 a year for three years.
No Liability Insurance – $250 a year for three years.

SURCHARGES FOR POINT VIOLATIONS

If you accumulate six or more points in a period of three years or less you must pay an insurance surcharge of $100 for the first six points and $25 for each additional point. The point surcharge will remain in effect as long as you have six or more points on your record resulting from violations posted in the immediate past three years. The accumulation is calculated from the posting date to your driving record, not when the violations occurred.

Once again, these surcharges are in addition to any surcharge that your insurance company might levy upon you. Any point reductions issued for one year of violation or suspension-free driving, or for completion of a driver improvement school or defensive driving course are not considered in reviewing the three year record for surcharge purposes.

SURCHARGES AND DRIVING WHILE SUSPENDED

If your operating privileges are suspended as a result of failure to pay insurance surcharges and you are convicted of operating while suspended, the court is mandated to impose an additional $3,000 fine. Pay the surcharge in full before your court appearance to avoid this extra fine.

NOTICES AND DUE DATES

Surcharge bills are printed on State of New Jersey-Automobile Insurance Surcharge and Collections (NJ-AISC) letterhead. These notices are different from premiums due to your insurance carrier. A driver must pay NJ-AISC by the due date printed on the bill. If a driver fails to pay the surcharge in full, or begin an installment payment plan (IPP) by that date, then their NJ driving privilege will be suspended until the minimum requirement is paid to NJ-AISC and a separate $100 restoration fee is posted to your NJ motor vehicle record. Never operate a motor vehicle until you have received confirmation that your NJ driving privilege is in good standing.The failure to pay will result in the filing of a certificate of debt (judgment) in the NJ Superior Court to collect the unpaid principal, plus added collection costs and interest.If the judgment remains unpaid, MVS is authorized to use the provision of the Set-Off of Individual Liability program (SOIL) by setting-off potential refunds and rebates processed by the NJ Division of Taxation.

PAYING THE SURCHARGE

Payment can be made by:

• Mail using the return portion of the billing notice
• In-person at one of the four regional service centers located in Wayne, West Deptford, Eatontown or Trenton
• Visa, MasterCard or Discover by calling 1-888-651-9999

BILLING QUESTIONS

If there is a mistake in your billing, or if you have any questions, you can write to: NJ-AISC Surcharge Billing Office Space, P.O. Box 4775 Trenton, NJ 08650-4775. You should include a daytime phone number and your NJ driver license number.

CHANGE OF ADDRESS

Surcharge notices are mailed to the last address of record. If you move, the law requires that you notify Motor Vehicle Services within seven days. Call 1-888-486-3339 toll free in NJ or 1-609-292-6500 from out of state or write to MVS Change of Address, P.O. Box 016, Trenton 08666-0016. You may also change your address by using the tear-off portion of the surcharge payment envelope and mailing it with your payment. If you move out of state, you must report all changes of address until you have satisfied the surcharge requirements.

DISHONORED CHECKS

For returned checks (insufficient funds) you will receive an indefinite suspension of your driving privilege and a notice for an additional $25 payment. This dishonored check notice or letter has instructions for satisfying the fee.

ROUTINE DRUNK DRIVING CASES – FIRST OFFENSE

A driver who enters a plea of guilty or who is found guilty for a first time DWI is subject to a range of punishments. He is she is required to pay a fine of $252 to $402. In addition to whatever the fines that are imposed, there is another $255 of mandatory related costs and assessments. The defendant must pay a $100 surcharge to the Drunk Driving Enforcement Fund. Upon a conviction of drunk driving, the defendant must also pay a $50 assessment to the Victims of Crime Compensation Board (VCCB), and a $75 assessment to the Safe Neighborhood Services Fund. The sentencing court must also impose a $100 surcharge that is shared between the town and the state. Finally, the court may impose $30 in court costs.

The defendant will also lose his driver’s license for a period of seven months to one year. The court will usually impose a seven-month suspension if the BAC readings are low or moderate. In my experience if the readings are from 1.5% BAC or higher, then the court may impose a longer suspension. If there is an accident, then the court will almost always impose a longer sentence.

The court can also impose a jail sentence on the driver for up to thirty days. However, most New Jersey municipal court judges never impose a jail term for a first time DWI. However, sometimes if there is a personal injury involved, or if the driver gave the police officer(s) a real hard time, then the court may impose a jail term.

The judge may also order that a first offender install an ignition device on their car pursuant to N.J.S.A. 39:4-50.16.

These devices are extremely expensive. They cost about $2,000, and there is about a $100 per month fee to have these devices monitored. In summary these devices make dealing with a DWI offense even more expensive. Most municipal court judges won’t require an ignition interlock device on a first time charge, unless there is a high reading, a young driver is charged, or if there is an accident.

The court is also required to sentence the defendant to detention at a program of alcohol education a facility run by the Department of Health known as the Intoxicated Driver Resource Center (IDRC). The defendant must attend the IDRC for two consecutive days, and spend at least six hours there each day. The defendant can be required to spend the entire 48-hour period at the IDRC. As a condition of the sentence, the defendant may also be required to complete an aftercare rehabilitation program that is recommended by the IDRC. The defendant must comply with all of the conditions imposed by the IDRC to get their driver’s license back.

Finally, after all of these requirements are satisfied, then the Motor Vehicle Service will send you a notice that advises the driver that there is a surcharge of $1,000 per year for three years imposed on the defendant. Most drivers make a payment plan with MVS and pay $83 a month. If the driver does not pay the MVS then their license will be automatically suspended. Many drivers have been stopped and given a driving while suspended ticket because they have not paid their surcharges from a DWI charge. Surcharges can only be wiped out in a chapter 13 bankruptcy, and not in a chapter 7 bankruptcy.

Drivers should also be advised that their car insurance rates almost always double after they are convicted of DWI.

ROUTINE DRUNK DRIVING CASES – SECOND OFFENSE

A second offense for DWI requires that court to impose a sentence that is much higher that a first time DWI. If there is a ten-year period between the first DWI and the second DWI, then the court will only sentence the defendant as a first time offender.

A second DWI offense subjects the defendant to a fine of $502 to $1,000. The defendant must also pay $50 VCCB, $75 SNF, and $30 in court costs. The court will also impose a $100 surcharge.

A judge must suspend a defendant’s driver’s license for two years for a second DWI.  A jail is mandatory for a second offense DWI is mandatory.

The defendant must serve at least 48 consecutive hours in jail, and the term of jail may be extended up to 90 days at the discretion of the court. The minimum two day jail sentence cannot be suspended by the court, but must actually be served by the defendant. However, the two-day sentence does not have to be served in jail. Instead, the defendant may serve his jail sentence in a county workhouse, in an impatient rehab facility, or the IRDC. Therefore, most of the time judges usually impose a two-day jail term, but permit the defendant to serve the two days in the IDRC.

The defendant is also required to perform 30 days of community service for a second DWI. One day of community service is deemed to be six hours long, so the defendant is actually committed to perform 180 hours of community service. Many times the court will suspend a jail term in order to give the defendant some incentive to finish the IDRC, and the community service.

A second offense DWI will subject a defendant to the same collateral consequences of a first time DWI. The defendant will have to pay $1,000 per year of surcharges for three years. Moreover, his cost of any auto insurance coverage will skyrocket.

Finally, a second offender will be required to install an ignition interlock device on their motor vehicle. The court has the discretion to require the defendant to install a ignition interlock device for a period of one to three years for a second time DWI offense.

ROUTINE DRUNK DRIVING CASES – THIRD OR SUBSEQUENT OFFENSE

The punishment for a third offense DWI is very stiff. It must also be stressed that there is an emerging trend that many municipal court judges are not following the “ten year” rule when it comes to a third time DWI offense. This means that if there is a ten-year gap between the DWI offenses, then the court will still treat the DWI charge as a third time DWI offense, and it will not treat it as a second time DWI charge. In simpler terms, there is a trend not to give any sentencing breaks whatsoever to any person charged with a third time DWI charge.

A third time DWI offenders must also pay a $1,002 fine. In addition a defendant must also by $30 in court costs, a $100 Drunk Driving Enforcement Surcharge, a $50 VCCB assessment, and a $75 Safe Neighborhood Services Fund Assessment.

The defendant will also lose his or her driving privileges for 10 years upon conviction for a third time DWI. A defendant must also serve 180 days in jail. However, in keeping with the legislative philosophy of rehabbing drunk driving defendants, a defendant with a crafty lawyer can significantly reduce the jail time. The sentencing court has the discretion to permit the defendant to perform community service instead of jail time for up to 90 days of the defendant’s sentence. The court also has the discretion to sentence the defendant to an impatient rehab program instead of jail.

A third violation will also subject the defendant to harsh collateral consequences. The defendant must pay $1,000 of surcharges for three years. However, if the third offense occurs within three years of the second offense, the surcharge is $1,500 a year for three years. The cost to get auto insurance will be similar to putting a down payment on home.

Finally, a third time DWI offender will have to install an ignition interlock device on their motor vehicle. Most judges will require that the interlock ignition device be installed for the max three years in a third time charge.

SCHOOL ZONE CASES

In 1999, the State of New Jersey enacted DWI laws to enhance a sentence for a driver convicted of DWI in a school zone. If a driver is stopped for a DWI within a 1,000 feet of the school zone, then the enhanced penalties provisions apply. These enhanced penalties are also known as the “Filomena’s law.” The amendments are intended to honor Filomena Coppola, a well-known and popular crossing guard who was struck and killed by a drunk driver while protecting two children at a school crossing in Nutley.

A defendant convicted of DWI within a school zone is subject to increase fines, license suspension, community service and jail.

The most important part of the school zone charge is that the sentence is doubled. A first time DWI in a school zone must lose their driver’s license for one year. A second time DWI in a school zone must lose their driver’s license for four years.

Two of the three sentencing enhancements for driving under the influence are strict liability in nature. It is not necessary that the prosecution prove that the defendant was in any way aware that he was driving within 1000 feet of school property, or within the school zone. Moreover, the statute does not even require that the children be present at the time of the violation within the school zone. The state expressly indicates that the school need not be in session at the time of the DWI violation. In essence, the legislature has created a 24 hour per day, seven day a week safety zone within 1,000 feet of the school zone. A defendant convicted of DWI will be subject to the enhanced school zone punishment even though he is stopped in the middle of the night, and there are no children around.

POSSIBLE LOOPHOLES TO BE SCHOOL ZONE CASE

A keen strategy to try to beat the school zone case is to make the State prove that the driver was actually in a school zone at the time of the arrest. The driver should make the State bring in the map maker to prove that the DWI arrest occurred in a school zone. All townships must have a certified map or a true copy of a map in order to prove that the violation occurred within 1,000 feet of a school zone.

Quite often the prosecutor overlooks this issue, and he just tries to convince the court that the arrest occurred in a school zone, without producing the mapmaker make to testify. Don’t stipulate to the arrest being in a school zone, make the prosecutor prove it. Quite often the prosecutor will be overwhelmed with their other cases, and they will not adequately prepare to prove this crucial element of the DWI school zone charge.

Also make the prosecutor prove that the property in question was regularly and actually used for school purposes at the time of the offense. The defendant can also try to prove that the school property was not used for school purposes at the time of the offense.

SUMMARY OF THE SCHOOL ZONE CHARGE

The school zone charge can really be a disaster for a driver. As explained above, basically the fines, the prison terms, and the length of suspension are doubled for a school zone charge. Evil cops will often tail a DWI driver and deliberately follow them until they know that they are in a school zone. If you get busted for a school zone charge then get yourself a lawyer who has at least ten years experience. Don’t mess around! These cases are hard to beat! However, if you pursue every possible defense, then it may be possible for you to convince the prosecutor to dismiss the school zone charge, and permit the driver to plead guilty to a straight DWI charge. This will enable the driver to avoid the enhanced penalties. Be prepared to spend some money to defend yourself against the evil and commonly known as the “zone” charge.

PLEA BARGAINING

In the world of DWI it is illegal to engage in plea barraging. This means that even if you get the “Johnny Cochran” of DWI lawyers, the prosecutor still must take your case to trial. The prosecutor may be permitted to drop a refusal charge if the driver pleads out to DWI. The parties can also engage in alternative dispositions. Sometimes the prosecutor’s case really has too many holes to go forward. Moreover, sometimes the police officer will arrest the driver and charge him with a DWI even though the BAC readings are way below the per se limit of .08%.

In these increasingly limited scenarios, the prosecutor will at times permit a driver to plead out to reckless driving, with the condition that the driver lose their license for 60 days.

THE TEN YEAR RULE

This is a very tricky doctrine. Basically, in a nutshell if there is a ten year gap between DWI convictions, then the DWI driver is sentenced more leniently.

N.J.S.A. 39:4-50(a)(3) provides a certain measure of relief to multiple offenders who go more than 10 years between offenses. If a second offense occurs more than 10 years after a first offense, then the sentencing court is required to treat the second conviction as a first offense for sentencing purposes. If a defendant commits a third offense more than ten years after the second offense, the court is required to treat the third offense as a second offense for sentencing purposes. The relevant date for all of these sentencing decisions is the date of offense as opposed to the date of conviction.

CHANCES OF SUCCESS IN BEATING A DWI CHARGE

There is an alarming trend that has emerged in the municipal courts all throughout New Jersey. The trend is that it is getting harder and harder to beat a DWI charge. Many lawyers on the web sites advertise how successful they are in beating DWI’s. I would read these web sites with a “grain of salt.” In my experience beating DWI cases just keeps getting more and more difficult every year. The main factors to evaluate your chances of success to beat a DWI charge are the following;

1. How high are the driver’s BAC readings.
2. How complete and thorough are the police reports.
3. What is the “culture” of the municipal court where the case is being tried.

Some municipal court judges are more open minded to your DWI defense then some more conservative judges are. Before a driver spends thousands of dollars to defend their DWI charge, he really should investigate and appraise the track record of the municipal court judge where the case is being tried. The DWI laws are the uniform throughout the entire state. However, the most important aspect in any DWI case is how is the law interpreted by the judge. Some judges tend to find almost all of the driver’s guilty of DWI even if there are many holes in the prosecutor’s case. This is cold hard reality of municipal court practice.

Remember, a driver does not get a jury trial in their DWI case. Until drivers are able to get a jury trial to defend themselves against the DWI charges, I don’t expect the acquittal rates to increase. New Jersey is the only state that does not provide a driver with the right to a jury trial to defend against a DWI charge. However, New Jersey is probably the most lenient state for DWI laws when it comes to sentencing. In most other states if you are found guilty of DWI, then the driver often has to serve some hard time in jail.

1. Don’t Panic

Getting busted for DWI is not the end of the world. More and more people are getting arrested for this offense each and every year. Believe it or not many of my clients have told me that their DWI case was a turning point in their life. They have advised me that they really “shaped up” after their case was over. Try to turn a negative DWI case into a positive aspect of your life.

2. Know Your Case

Don’t expect your lawyer to be a wizard and a mind reader. You have lived your DWI cases, and you know the facts better than the judge or your lawyer. In many cases, the police officer(s) makes many mistakes. The key factor in most DWI cases is how well the police “paper” your case. The better the police “paper” your case, then the greater the chance that you will lose your case.

However, know the discrepancies in your case inside and out. All defendants must carefully scrutinize the discovery that their lawyer sends them. Point out the errors in the paperwork to your lawyer. The more you help your lawyer then the better results you will obtain in your case.

3. Save Your Money

In all probability, you are not going to beat all of the charges filed against you. On D-day, don’t go to court with $20 in your pocket. Be prepared to pay some fines. The fines for DWI cases and for related companion traffic tickets are getting higher every year. Municipal Courts absolutely hate it when a DWI defendant comes to court with $20, when they know full well that their fines are going to be in the hundreds of dollars.

4. Know Your Court

Perhaps the most important aspect of your DWI case is to know your Municipal Court where your case is filled in. Some courts are more liberal than others. Talk to your lawyer about the “track record” of the Municipal Court where your case is filed in.

5. Don’t Plead Guilty Too Quickly

Many people just want to plead guilty really quickly just to get the case over with. Don’t plead guilty until you have at least carefully reviewed the discovery. Many times, you can absolutely become amazed as to the amount of errors that were made by the police in your case by simply reviewing the discovery.

The alcotest/draeger certificates may have expired. The discovery may indicate that this breath testing machine may have been malfunctioning around the time of your arrest. The police reports may not substantiate that there was sufficient probable cause to justify the stop of your case. Believe me, there are many DWI cases wherein the paperwork is just not properly prepared. Many police stations are overwhelmed, and they just can’t keep up with the paperwork that is necessary to convict DWI drivers. This is not the case in all of the towns. However, in some towns if you are one of the more fortunate DWI defendants, then the paperwork and discovery may reveal that there are many viable defenses in your case.

6. Get Help if You Need It!

Let’s be honest many DWI drivers have beaten the system for years. Many DWI drivers have been driving drunk for a very long time, and they have not gotten busted. This is your day of reckoning. Remember, DWI drivers can’t beat the system forever. If you are an alcoholic go get professional help. Go to rehab if your drinking problem is that severe. Also join up with your local Alcoholic Anonymous Association. Joining AA is a must. Moreover, if you have a very egregious case, the fact that you joined AA, can be used as a mitigating factor at your sentencing.

7. Don’t Blow Your Money if Your Case Stinks

If you have a real high B.A.C. reading and if the evidence against you is overwhelming, then cut your losses and work out a reasonable agreement with the prosecutor. Municipal Courts really don’t like it when a DWI defendant who is overwhelmingly guilty, decides to try his case anyway. The Municipal Courts are booked! At most Municipal Courts you can’t even park there because they are so over crowded. If you insist on a trial, then you will eventually receive one. However, only try your case if you have a “fighting chance.”

8. Change Your Automobile Insurance Over to Your Spouse

If a person is convicted of DWI, then their insurance rates will triple. Therefore, it is advisable to switch all automobile insurance policies to your spouse.

9. Don’t Blow Off Your Case Just Because You Don’t Live in New Jersey

Many people make the mistake that if they don’t live in New Jersey, then they don’t have to take a New Jersey DWI charge seriously. This is a major error and misconception. If a person is convicted in New Jersey, then after the case is over, New Jersey will send a report of the conviction to the driver’s home state. This is a requirement of the Interstate Driver Compact. In most cases, the driver’s home state will then also suspend the driver for the NJ DWI conviction. With the explosion of the internet DWI drivers can’t hide anywhere.

10. Always Review Your Driver’s Abstract

Many times DWI drivers simply do not review their driver’s abstract before they plead guilty to a DWI charge. Remember, the sentencing penalties are dramatically different for a first time DWI offense, as compared to a second time DWI offense. I have been involved in many cases when clients simply forgot to tell me that they had a prior DWI on their record. All prior DWI’s show up on the defendant’s driving record. Just don’t assume that your prior DWI is ten years old. Review your driver’s abstract before you plead guilty!

The New Jersey DWI laws combat the evils of drunk driving. In general New Jersey DWI law prohibits the following courses of conduct:

1. The per se violation.

It is a violation to operate a motor vehicle in New Jersey with a blood alcohol concentration of .08% or more by the weight of alcohol in the defendant’s blood. When a DWI blows a .08% BAC then this is referred to as a per se violation. The violation is called a per se because the DWI driver is automatically convicted as long as the prosecutor can prove that the person also drove the vehicle. It doesn’t matter that the DWI driver shows that he has no outward effects of being drunk, or that the consumption of alcohol in no way affected the defendant’s ability to drive safely. If a DWI driver blows a .08% BAC, then he or she is guilty even if he drove perfectly.

2. Operating while under the influence of intoxicating liquor.

A DWI .08% can also be convicted for being “under the influence of intoxicating liquor.” Basically, if a DWI blows below a .08% BAC, then the prosecutor may try to convict the DWI under observations of the police officer, and by the field sobriety tests. Basically, this section of the DWI statute is a fall back provision to enable the prosecutor to convict a DWI driver if the readings are below the per se limit of .08%.

Any given defendant who is an inexperienced drinker may have a blood alcohol concentration substantially below the prohibited .08% level and not yet be profoundly intoxicated. Such a DWI driver would not be guilty of the per se violation of the DWI statute.

On the other hand, an experienced drinker, may have a blood alcohol level substantially above the .08% level and yet not be under the influence of alcohol. Such a defendant would be guilty of the per se violation and not guilty of being under the influence.

As a result of the foregoing, the prosecutors will typically prosecute both the per se violation and the under the influence violation during the presentation of the States’ case the prosecutor’s strategy is that if the proofs fail one type of prohibited conduct, he may be successful on the other.

REFUSAL TO SUBMIT A BREATH TEST

New Jersey law requires that every driver using the roadways in New Jersey to submit to a chemical breath test when requests. NJ law imposes harsh civil penalties, fines, motor vehicle surcharges, and a long suspension of driving privileges if a driver refuses to take a breath test.

The New Jersey courts have joined with the Legislature in implementing the implied consent statute, or forcing drivers to take a breath test. The New Jersey Supreme Court has interpreted the public policy of the implied consent statute to be more protective than punitive. Its primary purpose is not to punish the driver, but to protect the motoring public by removing the offending driver from the highways with reasonable dispatch.

The implementation of New Jersey’s public policy by the courts and the efforts by the police to enforce the implied consent law create numerous challenges for both the prosecutors and defense counsel who must handle refusal cases. Given the numerous potential sentencing enhancements associated with the statute, refusal cases are frequently hotly contested in court. Indeed, the act of refusing to submit to a breath test may be used by the court to infer guilt on the related drunken driving charge.

Yet, over and above these issues, there are other, more basic legal problems that must be confronted in every refusal case. Did the actions of the defendant actually constitute a refusal? Was the defendant legally required to take a breath test? Can a defendant who initially refuses change his or her mind and voluntarily submit to a breath test? Can an acquittal for refusal to submit to a chemical test be appealed by the State? These and many other topics are explored in the sections that follow.

Elements of the Refusal Offense-In General

In general, there are five elements in a refusal case that must be proven by the State by a preponderance of the evidence. These include;

1. That the arresting police officer had probable cause to believe that the defendant operated a motor vehicle while under the influence of alcohol;
2. An arrest of the defendant;
3. A refusal by the defendant to submit to a breathalyzer test;
4. That the request for the defendant to take the test was made by a police officer who had reasonable grounds to believe that defendant had been operated a motor vehicle in violation of the DWI laws; and
5. The attempt to administer the breath test was conducted lawfully.

Each of these five elements requires a discussion and analysis.

1. Probable cause to Believe that the DWI Driver Operated While Under the Influence.

The police must have probable cause to arrest the driver for a DWI charge. The police officer can’t just pull over the vehicle, and go “fishing” for DWI drivers. A probable cause determination is based upon the arresting officers’ perceptions, training, experience, and consideration of the totality of the circumstances.

2. Arrest of the Defendant

The refusal charge also requires that the DWI driver be arrested. The arrest of the DWI driver must be supported by adequate probable cause.

3. Refusal to Submit to the Breath Test

Due to their circumstances, perceived legal problems and the general state of intoxication, many drunk driving defendants will engage in conduct which can constitute a refusal to submit to a breath test. The law is well settled that anything substantially short of an unqualified, unequivocal consent to a cop’s request for a breath test constitutes a refusal to do

TYPICAL REFUSAL SCENARIOS

A. Silence

When the arresting officer asks the defendant whether he or she will submit to a breath test, the defendant remains silent. This may be due to the defendant’s subjective, good faith belief that he or she has a right to remain silent. However, the defendant’s subjective intent is irrelevant in, determining whether the defendant’s responses or lack of responses constitute a refusal to, take the test. Silence by the defendant is sufficient evidence to constitute a refusal to submit to a breath test. This bright line rule, was adopted by the Appellate Division of Superior Court in State v. Sherwin, 236 N.J. Super. 510 (App. Div. 1989)

B. Insufficient Number of Breath Samples

The refusal statute mandates consent to the taking of samples, of a defendant’s breath. However, how many samples must a defendant provide. Normally, the police will require a minimum of two samples, in, order to be assured of accurate, consistent blood alcohol results. In the case State v. White, 253 N.J. Super. 490 (Law. Div. 1991), the court held that a DWI driver must provide at least two samples of their breath and the failure to do so constitutes a refusal.

C. Short Samples

A short sample occurs when the defendant either pretends to blow into the breathalyzer or the does not provide a sufficient amount of breath to fill the chamber. These so-called short samples will not result in a valid reading from the breathalyzer and are of no value. Thus, a short sample is no sample at all. For this reason, a short sample can not constitute sufficient evidence to satisfy the refusal element.

D. Delay in the Administration of the Breath Test

Defendants will sometimes seek to delay the administration of the breathalyzer test. Frequently, this is done in order to attempt to speak to an attorney or with some other person to obtain legal advice prior to taking the breath test. Defendants have no right to delay the administration of a breathalyzer test. Due to the evanescent nature of evidence of alcohol intoxication, it is vital that the police obtain the breath samples from the defendant without undue delay. Indeed, the samples, must be obtained within a reasonable period of time after either operation of a motor vehicle or arrest. Any delay initiated by the defendant may frustrate police efforts to obtain reliable evidence of the defendant’s blood alcohol concentration within a reasonable period of time. For these reasons, a delay by the DWI driver for any reason to take the breath test can constitute sufficient evidence to convict for refusal.

E. Conditional Refusals

A DWI driver may attempt to place “conditions” upon their consent to provide breath samples. In the typical case; the defendant will consent to take a breath test only after being permitted to cause the restroom or make a phone call. A DWI driver can;t attach any conditions to taking the breath test.

F. The Confusion Doctrine

The defendants who are requested to submit to the breath tests by the police sometimes become confused by the information they are provided by the police. As part of the arrest procedure, the police will often advise a drunken driving suspect of his or her Miranda rights. These include a warning that the defendant has the right to remain silent and to speak to an attorney before any questioning by the police. However, the warnings given to a defendant as to his or her obligation to submit to a breathalyzer test inform the defendant that there is no right to refuse to provide the police with a breath sample or to speak to an attorney before providing a breath sample to the police.

Can the contradictory and, confusing nature of these two advisements to a defendant cause such confusion in the defendant’s mind that he or she can be legally justified in refusing to take a breathalyzer test?

The New Jersey Supreme Court recognized that, as a practical matter, it is difficult to explain to a suspected intoxicated driver under arrest at the police station house the subtle legal distinctions that make it constitutionally permissible to extract a person’s blood or breath but not his or her words. The Supreme Court has even suggested changes to the language used to advise defendants of their obligations under the implied consent law that will eliminate some of the potential for confusion. See, State v. Leavitt, 107 N.J. 534 (1987)

Thus, while confusion is not a recognized defense to a refusal charge, there has been no bright line established by the Supreme Court which would prevent a defendant from raising this issue. A defendant who wishes to assert the “confusion doctrine” as a defense to a refusal charge will bear the burden of persuasion if he or she wishes to establish a confusion claim.

A DWI driver who cannot prove that he or she was confused by the warnings will be found to have refused to submit to a breath test.

G. Physical Incapacity

A DWI driver can argue at court that they were physically incapable of giving a breath test. This type of strategy can work if the DWI driver has breathing problems such as asthma, or if they were shaken up by the accident. Moreover, a driver’s incapacity to take the breath test may be due to a high level of intoxication, illness, or fatigue.

Based on the realities of the DWI case, that a injury to the DWI driver’s mouth, face, chest or lungs that would reasonable prevent the driver from providing a breath sample would probably excuse a refusal.

4. THE POLICE OFFICER MUST HAVE REASONABLE GROUNDS TO REQUEST A BREATH TEST.

The police officer who requests that the DWI take a breath test must also have “reasonable grounds” to believe that the driver was also drunk. Basically, the police officer must have had probable cause to stop the vehicle to conduct an inquiry for a DWI. Remember, a police officer can’t just pull over a vehicle and request that the driver take a breath test. The vehicle must be stopped for committing some type of motor vehicle violation that would satisfy the probable cause standard. The car must be speeding, weaving, or a tail-light must be out. Any random stops of vehicles in most municipal courts do not satisfy the probable cause standard.

5. THE ALCOTEST MUST BE ADMINISTERED IN ACCORDANCE WITH THE LAW.

Basically, the police have to read DMV Standard Statement 36 to the DWI driver. If they don’t this may be a great loophole for a DWI driver, in an “open minded” court.

DWI SENTENCING

THE TEN YEAR RULE

This is a very tricky doctrine. Basically, in a nutshell if there is a ten year gap between DWI convictions, then the DWI driver is sentenced more leniently.

N.J.S.A. 39:4-50(a)(3) provides a certain measure of relief to multiple offenders who go more than 10 years between offenses. If a second offense occurs more than 10 years after a first offense, the sentencing court is required to treat the second conviction as a first offense for sentencing purposes. If a defendant commits a third offense more than ten years after the second offense, the court is required to treat the third offense as a second offense for sentencing purposes. The relevant date for all of these sentencing decisions is the date of offense as opposed to the date of conviction.

OUT OF STATE DWI CONVICTIONS

There are two possible effects that an out of-state DWI or a drug conviction can have on a New Jersey resident driver. First, a New Jersey resident can expect the imposition of an administrative license suspension and costly surcharges from New Jersey Division of Motor Vehicles once the out-of-state conviction has been reported.

In addition, should the New Jersey resident driver be charged and convicted of a subsequent offense in New Jersey during the ten-year period following the out-of-state conviction, the prior conviction will subject the driver to enhanced penalties in New Jersey.

Administrative Sanctions

When a New Jersey resident is charged and convicted of a offense in a state outside of New Jersey then, a record of the conviction usually be reported to the Director of the Motor Vehicles Services. This is especially likely if the New Jersey resident presented his New Jersey driver’s license to the police in connection with the out-of state violation.

A report of these convictions will be made to the Division of Motor Vehicle Services by operation of law through the Interstate Driver’s License Compact. If the conviction is reported to the New Jersey Division of Motor Vehicle Services, the Director will then take administrative steps to suspend the driving privileges of the resident driver. The length of the suspension will be in accordance with the minimum license suspension periods available under N.J.S.A. 39:4-50, depending upon the driver’s history of prior offenses.

A reported out-of state DWI conviction will also trigger the imposition of surcharges by the MVS. The surcharge will be at the rate of $1,000 per year for three years.

SENTENCING ENHANCEMENTS

The law is now clear that a prior out-of-state conviction enhances a subsequent conviction, that occurs in New Jersey. According to N.J.S.A. 39:4-50(a)(3), a DWI in any of state that is similar to the NJ DWI law will constitute a prior conviction in New Jersey for sentencing purposes.

For the immediate future, a New Jersey defendant may be able to avoid the sentence enhancement consequences of an out-of-state DWI conviction only under certain circumstances. The DWI driver may be able to prove that the out of state conviction was based on evidence that was less that the standard of proof as used in New Jersey. Basically, the DWI driver must prove that if the out of state court used the same standard of proof as New Jersey did, then he would not have been convicted.

As a practical matter, this means that the if defendant’s prior conviction was based upon a BAC of .08% or .09% in a State that makes the DWI level .08%, then the New Jersey driver can argue that this out of state conviction should not count as a prior conviction.

The statute N.J.S.A. 39:4-50 makes it unlawful to “operate a motor vehicle while under the influence of intoxicating liquor … or .. with a blood alcohol concentration of .08% or more by weight of [blood] alcohol.” There are two prongs to New Jersey’s Drunk Driving Law (i.e. a Defendant can be convicted in one of two ways); (a) operating a motor vehicle while “under the influence of intoxicating liquor”, or (b) operating a motor vehicle with a “blood alcohol concentration of .10% or more.” The term “Under The Influence” is broadly defined as a driver who has consumed alcohol “to the extent that his physical or mental faculties are deleteriously affected.” State v. Emery, 27 NJ. 348 (1958). Currently, a person who operates a motor vehicle with a BAC of .08% or more is guilty, regardless of how the alcohol may have affected him personally. The most common form of BAC evidence is a breathalyzer reading which (mathematically) converts breath alcohol into a blood alcohol reading.

THERE ARE NO CONDITIONAL DRIVER LICENSES
AFTER A PERSON IS CONVICTED OF DWI.

There are no conditional driver licenses after a person is convicted of a DWI offense. The revocation of your driver’s license in New Jersey is mandatory for the prescribed period(s). There are currently no exceptions in New Jersey Law which would provide for a conditional driver’s license for work or otherwise.

An out of state conviction for a drunk driving law, of a substantially similar nature, will constitute a prior offense in New Jersey. It is, however, possible to exclude the out of state conviction by proof that the conviction was based solely upon a violation of a proscribed BAC of less than .08%.

There are two possible effects that an out of-state driving while under the influence of alcohol or drugs conviction can have on a New Jersey resident driver. First, a New Jersey resident can expect the imposition of an administrative license suspension and costly surcharges from New Jersey Division of Motor Vehicle Services once the out-of-state conviction has been reported. In addition, if a New Jersey resident driver is charged and convicted of a subsequent offense in New Jersey during the ten-year period following the out-of-state conviction, the prior conviction will subject the driver to enhanced penalties in New Jersey.

Administrative Sanctions

When a New Jersey resident is charged and convicted of a offense in a state outside of New Jersey, a record of the conviction usually be; reported to the Director of the Division of Motor Vehicle Services. This is especially likely if the New Jersey resident presented his New Jersey driver’s license to the police in connection with the out-of state violation.

A report of these convictions will be made to the Division of Motor Vehicle Services by operation of law through the Interstate Driver’s License Compact. If the conviction is reported to the New Jersey Division of Motor Vehicles, the Director will take administrative steps to suspend the driving privileges of the resident driver. The length of the suspension will be in accordance with the minimum license suspension periods available under N.J.S.A. 39:4-50, depending upon the driver’s history of prior offenses.

A reported out-of state DWI conviction will also trigger the imposition of surcharges by the MVS. The surcharge will be at the rate of $1,000 per year for three years.

SENTENCING ENHANCEMENTS

The law is now clear that a prior out-of-state conviction enhance a subsequent conviction, that occurs in New Jersey. According to N.J.S.A. 39:4-50(a)(3), a DWI in any of state that is similar to the NJ DWI law will constitute a prior conviction in New Jersey for sentencing purposes.

For the immediate future, a New Jersey defendant may be able to avoid the sentence enhancement consequences of an out-of-state DWI conviction under certain circumstances. The DWI driver may be able to prove that the out of state conviction was based on evidence that was less that the standard of proof as used in New Jersey. Basically, the DWI driver must prove that if the out of state court used the same standard of proof as New Jersey did, then he would not have been convicted.

1. What do police officers look for when searching for drunk drivers on the highways?

The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:

• Turning With a Wide Radius
• Straddling Center of Lane Marker
• Appearing to be Drunk
• Almost Striking Object or Vehicle
• Weaving
• Driving on Other Than Designated Highway
• Swerving
• Speed More Than 10 mph Below Limit
• Stopping Without Cause in Traffic Lane
• Following Too Closely
• Drifting
• Tires on Center or Lane Marker
• Braking Erratically
• Driving into Opposing or Crossing Traffic
• Signaling Inconsistent with Driving Actions
• Slow Response to Traffic Signals
• Stopping Inappropriately (Other Than in Lane)
• Turning Abruptly or Illegally
• Accelerating or Decelerating Rapidly
• Headlights Off

Speeding, incidentally, is not a symptom of DWI; because of quicker judgment and reflexes, it may indicate sobriety.

2. If I am stopped by a police officer and if he asks me if I’ve been drinking, what should I say?

You are not required to answer potentially incriminating questions. A polite of “I would like to speak with an attorney before I answer any questions” is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication — and it may explain the odor of alcohol on the breath.

3. Do I have a right to an attorney when I am stopped by an officer and asked to take a field sobriety test?

In New Jersey, there is no right to speak to an attorney until after you have submitted to blood or breath testing at the station (or have refused to do so).

4. What is the police officer looking for during the initial detention at the scene?

The traditional symptoms of intoxication taught at the police academies are:

• Flushed face
• Red, watery, glassy and/or bloodshot eyes
• Odor of alcohol on breath
• Slurred speech
• Fumbling with wallet trying to get license
• Failure to comprehend the officer’s questions
• Staggering when exiting vehicle
• Swaying/instability on feet
• Leaning on car for support
• Combative, argumentative, jovial or other “inappropriate” attitude
• Soiled, rumpled, disorderly clothing
• Stumbling while walking
• Disorientation as to time and place
• Inability to follow directions

5. What should I do if I’m asked to take field sobriety tests?

There are a wide range of field sobriety tests (FST’s), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most police officers will use a set battery of three to five such tests.

Unlike the breath  test, where refusal to submit may have serious consequences, you are not legally required to take any FST’s. The reality is that officers have usually made up their minds to arrest when they give the FST’s; the tests are simply additional evidence which the suspect inevitably “fails.” Thus, in most cases a polite refusal may be appropriate.

6. Why did the police officer make me follow a penlight with my eyes to the left and right?

This is the “horizontal gaze nystagmus” test, a relatively recent development in DWI investigation. The officer attempts to estimate the angle at which the eye begins to jerk (“nystagmus” is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration more than .05%. The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer’s ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible in New Jersey.

7. The police officer never gave me a Miranda warnings: Can I get my DWI case dismissed?

No. The police officer is supposed to provide a Miranda warnings after he arrests you. Often, however, the police fail to do so. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

Of more importance in most cases is the failure to advise you of the state’s “implied consent” law – that is, your legal obligation to take a chemical test and the results if you refuse. This can affect the suspension of your driver’s license.

8. Can I represent myself? What can a lawyer do for me?

You can represent yourself — although it is not a good idea. “Drunk driving” is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing issues.

What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field — no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

9. What is a sentencing “enhancement”?

New Jersey law increases the punishment in drunk driving cases if certain facts exist. The most common of these enhancements is an earlier conviction for the same or a similar offense within ten years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:

• A child was in the car at the time
• The driver had a CDL and at the time was driving a commercial vehicle
• The defendant refused to submit to a breath test
• There was property damage or injury
• The defendant was under 21 (“zero tolerance” laws commonly require a much lower blood-alcohol level, and impose longer license suspensions).

The existence of serious bodily injury caused by drunk driving elevates the offense to a felony. A death can trigger manslaughter or even, if special circumstances exist, murder charges.

10. What is “mouth alcohol”?

“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

11. What defenses are there in a DWI case?

The potential defenses in any given drunk driving case there almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

• Driving: Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
• Probable cause: Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
• Miranda:Incriminating statements may be suppressed if warnings were not given at the appropriate time.
• “Under the influence”: The officer’s observations and opinions as to intoxication can be questioned — the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as “failing”. Also, witnesses can testify that you appeared to be sober.
• Blood-alcohol concentration: There exists a wide range of potential problems with blood, breath or urine testing. “Non-specific” analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state’s expert witness, and/or the defense can hire its own forensic chemist.
• Testing during the absorptive phase: The blood, breath or urine test will be unreliable if performed while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking “one for the road” can cause inaccurate test results.
• Regulation of blood-alcohol testing: The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.

12. Should I agree to take a breathalyzer test? What happens if I don’t?

There are three adverse consequences for refusing to submit to a breath or blood test (or urine if neither are available or if drugs are suspected): Your driver’s license will be suspended for 7 months to 1 year in addition to the suspension for DWI. If this is a second offense then the suspension is for 2 years. The fact of refusal can also be introduced into evidence at trial as evidence of “consciousness of guilt.” Of course, the defense is free to raise other reasons for the refusal, such as the fear of needles or the traditional offense will be charged.

13. Will a driver go to jail if he is convicted of DWI?

On a first time DWI offense most drivers will not be sentenced to jail. If the driver has a high BAC reading, then the judge may impose some community service, and he may also impose a stiffer fine.

On a second or later offense, the chances of receiving a jail term increase significantly. However, an experienced lawyer can usually find a way to keep a driver out of jail for a second or the third offense. Most of the time the judge will not sentence the driver to a jail term for a second offense. The court will order the driver come to the Municipal Court on numerous days and watch the court proceedings. Each day the driver sits in at court will constitute as one day in jail.

For a third time DWI offense, the driver must receive a mandatory 6 month jail term. There is a 90-day stip for this six-month term. In simpler terms, the DWI driver must serve 90 days in the County Jail. However, 90 days of the jail sentence can be served by performing community service, or by enrolling into a rehab program.

14. What are the sentences for DWI in New Jersey?

For the first offense DWI, the fines range between $250 and $400. A driver must attend Intoxicated Driver Resource enter (IDRC) for 12 to 48 hours. A driver must pay $100 for the IDRC program. A driver must also pay a $50 Violent Crimes Compensation Board (VCCB) penalty, and a $75 Safe Neighborhood Fund Assessment. A driver can be sentenced to up to 30 days in jail. A driver will also lose his driver’s license from 7 to 12 months.

If a driver is able to have the DWI charge dropped to driving while appeared, then the driver will only lose their driver’s license to 3 months. A driver must have a BAC lower than .10% in order to receive the shorter suspension for the driving while impaired charge.

For a second DWI offense, the fines range from $500 to $1,000. A driver must perform community service for a period of 30 days. A driver must attend the IDRC for 12 to 48 hours. A driver must pay $100 to attend the IDRC program. A driver must also pay a $50 VCCB penalty, and a $75 Safe Neighborhood Fund Assessment. A driver can be sentenced to a jail term for up to 90 days. Finally, a driver will also lose his driver’s license for a mandatory 2 years.

For a third or a subsequent DWI offense, a driver will be fined $1,000. The driver must attend the IDRC for 12 to 48 hours. A driver must pay $100 for the IDRC program. A driver must also pay a $50 VCCB penalty, and a $75 Safe Neighborhood Fund Assessment. A driver will be sentenced to jail for a term of 180 days. However, 90 days of the jail sentence can be served performing community service. A driver will lose his driving privileges in New Jersey for 10 years.

15. What happens if a DWI driver is stopped in a “School Zone?”

If a DWI driver is arrested in a “School Zone” then basically the fines and the length of the driver’s license suspension are doubled. This is a strict liability offense. The DWI stop must occur within 1,000 feet of the “school zone.” For a first time offense, the license suspension is 1 to 2 years. For a second time offense, the license suspension is 2 to 4 years. The jail terms and the fines are also doubled. The “school zone” provisions are often used as leverage for the prosecutor to obtain a conviction. In many cases, the prosecutor may drop the “school zone” charge in return for a straight plea to the DWI charge. A driver cannot use the defense that since school was closed, that the area cannot be considered a “school zone.” A driver can be charged for this offense even if he is stopped in the middle of the night and there is no school in session.

16. What is the “Ten Year Rule”?

The “Ten Year Rule” basically means that a ten-year-old DWI conviction cannot count as a prior conviction for DWI sentencing purposes. The “Ten Year Rule” does not apply in a third time offender case. I predict that the “Ten Year Rule” will be abolished shortly. The basic premise of this rule is that a DWI driver should not receive a sentencing enhancement if his prior DWI conviction is ten years old or more. The “Ten Year Rule” can get very complicated. However, in many cases this rule can save a DWI driver from being sentenced as a second offender.

17. Does a DWI conviction in another State besides New Jersey count as a “prior conviction” for sentencing purposes?

In many cases, a DWI driver may have prior DWI conviction(s) in another state. A DWI conviction in a sister state also counts as a prior conviction for New Jersey DWI sentencing purposes. However, an experienced DWI attorney can always argue that the constitutional guaranties of the prior sister state DWI conviction is illegal. Therefore, a crafty lawyer can always make arguments that the out of state DWI conviction should not count as a prior conviction.

Before a DWI driver is sentenced, the Municipal Court judge must run the driver’s abstract, and then review it for any prior DWI convictions. In many cases, a DWI driver’s prior out-of-state conviction(s) will not appear up on the abstract. A DWI driver has a legal obligation to be truthful and to inform the Municipal Court of his prior out-of-state DWI convictions. Many sneaky DWI drivers lie to the Municipal Court and they refuse to disclose their prior out of state DWI convictions. Sometimes, they get away with these lies. Sometimes, they are busted. If the driver is busted then he could be indicted for perjury charges.

18. What happens to a New Jersey driver if he obtains a DWI in another State?

If a New Jersey citizen obtains a DWI conviction in another state then eventually he will also be suspended in New Jersey. Once the out-of-state DWI conviction is finalized, then the sister state will report it to New Jersey MVS. Thereafter, the NJ MVS will file an administrative case to request a suspension of the person’s New Jersey driver’s license. The New Jersey driver will also receive surcharges, and he also will be required to attend IDRC classes.

19. Are the DWI laws different if the driver is an “Underage Drinker”?

The DWI laws are much stricter for the “underage drinker.” An underage drinker cannot have a trace of alcohol in their system. All the prosecution is required to prove is that the defendant had a blood alcohol concentration of at least .01% but less than .08%. An underage driver convicted of this violation is required to perform between 15 and 30 days of community service. The underage driver is required to lose his driver’s license for 30 to 90 days. Finally, the underage driver must also attend the IDRC. In summary, an underage driver can be convicted of this charge for only consuming just one alcoholic beverage. A minor is not legally permitted to have even a trace of alcohol in his system.

20. Can a driver be convicted for a DWI charge and for Refusal to Submit to a Breath Test?

In many cases, the driver will be charged with both a DWI and a refusal charge. If a driver is convicted of both charges then the Municipal Court judge has no alternative but to impose consecutive sentences on both convictions. Under New Jersey law these charges are considered to be separate offenses, and they do not merge at sentencing.

In simpler terms, the penalties and the suspensions will be doubled. In many situations, an experienced attorney will be able to have one of these charges, either the DWI or refusal conviction dropped. However, if the driver forces the court to have a trial, and if the BAC readings are high, then a Municipal Court almost always imposes two consecutive sentences, 7 months for the DWI and 7 months for the refusal charge. The total aggregate sentence will be a 14-month license suspension.

In summary, a driver faces a lengthy license suspension, double fines, and double surcharges if he has a trial and if he is convicted of both charges. I have never seen a case wherein a driver has beaten both the DWI charge and the refusal charge in one trial.

21. How can a DWI driver avoid jail time if he is convicted?

A Municipal Court judge in most cases does not want to sentence a DWI driver to jail if he is convicted. In many counties the local jails have all types of community service programs that can be served in lieu of jail terms. In Northern Jersey, the counties of Union and Essex have SLAP programs. These programs permit the driver to serve his time by doing community service, instead of jail time.

In Ocean and Somerset Counties a convicted DWI driver can serve his time on the weekends, and then be released during the week. In Middlesex County the county jail will permit the driver to be released during the day and then go to work. However, at night the driver must return to the jail. In Monmouth County the county jail has a wristlet program. The convicted DWI driver will have to wear a wristlet monitoring bracelet. The driver will be subject to home confinement. During the day, the driver has to go the county jail and perform community service. In Middlesex County a convicted DWI driver can serve his time by performing community service. The driver will have to make this application to the court. If the driver is accepted, then he will have to report to the Middlesex County Workhouse on weekends for work duty.

22. If a driver loses his New Jersey license can he still obtain a license in another state?

I have had many clients who try to apply for a driver’s licenses in other states before they plead guilty to the New Jersey DWI charge. Sometimes there are glitch(s) in the computer system(s) and the sister state will issue a driver’s license to the New Jersey driver. In most states before anyone can be issued a driver’s license, he is asked if he is suspended in any other states. A driver commits fraud if he lies and make misrepresentations on his application. There are glitches in DMV computer systems. Many times a DWI driver can pull off obtaining another license in another state. However, after 9/11 security has increased tremendously. If the DWI driver is busted for this type of fraud, then he must be prepared to also accept a harsh punishment.

23. What are the surcharges for a driver if he is convicted of DWI?

A driver will receive a $1,000 a year surcharge for three years if he is convicted of a DWI. A driver can pay these surcharges at the monthly rate of $83 per month for 36 months.

24. Can a court issue a convicted DWI driver a temporary license only to be used for work?

No. There are no conditional licenses in New Jersey, even if the driver is only going to drive to work. A conditional work license has never existed in New Jersey, and it never will.

25. What if the police officer does not appear for trial, can I win the case by default?

In most cases, the court will adjourn the case if the police officer does not show up for a DWI trial. A good defense lawyer will then ask the court to make the next court session as “try or dismiss.” This means that at the next court date, the case will be dismissed if the police officer does not appear.

26. What are the odds of a person “beating” a DWI charge in New Jersey?

The plain truth is that “beating” a DWI charge is extremely difficult. I have been in practice since 1991, and each and every year more DWI defenses are restricted, and legal loopholes closed. There is a tremendous amount of politics that are involved with DWI cases. Moreover, there is a tremendous amount of pressure on the municipal courts to convict DWI defendants. A DWI driver has all of the constitutional guaranties of having a trial. However, there are no jury trials in DWI cases. This translates into a much lower percentage of winning DWI cases.

It gets worse! The old breathalyzer machines are now being phased out. The old breathalyzer machines are called the Breathalyzer Model 900 and 900A. These machines are very old, and they are no longer being manufactured. These breathalyzer machines are repaired by “cannibalizing” parts from discarded machines. The old machines are very complicated to use. A police officer must use a 15-step checklist to use the 900 and 900A Breathalyzer Model. Moreover, these machines do not provide a printout of the breath test results. Finally, the results of the 900 and 900A Breathalyzer Models rely entirely on the operator’s ability to correctly conduct the breath tests.

A new breath test machine called the Alcotest 7110 is now being phased in. This new breath machine is essentially the “Terminator” of breath machines. A police officer only has to turn the machine on and advise the DWI driver to blow into the machine. The police officer also does not have to follow the 15 step checklist to conduct the breath tests.

In summary, the Alcotest 7110 is going to destroy more than half of the available DWI defenses. In my opinion, the major issue in most DWI cases is only going to be on sentencing issues. It is getting harder and harder to beat DWI cases. The new Alcotest 7110 machine is going to drastically reduce a DWI driver’s chances of beating a DWI charge.

This FAQ article contains information obtained from Lawrence Taylor, Esq. and from his website DUICentral.com.

DWI APPEALS

A DWI defendant may appeal either the sentence or the finding of guilty to the Law Division of the Superior Court. The New Jersey Municipal Court system of justice is one of the finest systems in the county. However, the New Jersey Municipal Courts are often influenced by local politics. There is a tremendous amount of pressure on Municipal Courts to convict DWI defendants. Moreover, there are no jury trials in a municipal court. Therefore, quite often the defendant’s best chance to have their case reviewed by a neutral and independent court is on the appeal.

TIME FOR FILING MUNICIPAL APPEAL

Under normal circumstances, an appeal to the Law Division of the Superior Court must be filed within 20 days of the entry of the judgment. However, under certain circumstances, the time period to file an appeal may be relaxed.

PROCEDURE FOR FILING AN APPEAL

An appeal by the defendant from a finding of guilt or a sentence begins with the filing of a notice of appeal with clerk of the county criminal court. The defendant must also pay a filing fee when he files the notice of appeal. The defendant must also pay a deposit between the amount of $300 to $500 to the municipal clerk to pay for the transcripts.

STAY OF SENTENCE

In a DWI case, the mere filing of an appeal does not restore the defendant’s driving privileges pending the appeal. The DWI driver may also seek a stay of the license suspension from either the municipal court, or the Law Division. Many Municipal Courts are very hesitant to stay the license suspension pending any appeal. However, most municipal court judges will stay the imposition of any jail terms pending any appeal. Absent some extraordinary, undue hardship to the DWI driver, such an application will never be granted. The possibility for a driving catastrophe is too great a risk for most judges.

PREPARING FOR A MUNICIPAL APPEAL

EXHIBITS

The parties to a municipal appeal are permitted to advance arguments of fact and law based upon the transcript of the case in the municipal court, and any exhibits that were received in evidence. Often one of the most important exhibits will be the video of the defendant taken by the police during either the motor vehicle stop or while back at the police station. It is vital that the videotape be marked as an exhibit, authenticated, and moved into evidence at the trial level.

BRIEFS

In a municipal DWI appeal a brief must be filed. The briefs must be comprehensive and well written. It is impossible for a pro se defendant to write a good brief. Therefore, it is always advisable to retain a on experienced lawyer on an appeal.

HEARING

The case will be scheduled for a hearing before one Superior Court Judge. The hearing is referred to as a De Novo Review or De Novo Trial — this means that the Court will review the transcripts, the evidence produced at trial, and make their own findings of fact and law. The reviewing court may, but is not required, to give deference to the Trial Court’s findings of fact. While there are limited exceptions, generally, no new evidence may be introduced at the De Novo Trial.

Following the hearing, where the defendant and counsel are present along with the County Prosecutor, the County Judge makes a decision. The Judge can re-affirm a guilty verdict by making his own independent finding(s) or can find a defendant not guilty. If the court does (again) find a defendant guilty, the penalties imposed may not be greater than those penalties imposed by the municipal court.

1. OVERVIEW OF THE LAW.

This charge is codified under N.J.S.A. 39:3-40. DWI and driving while revoked go together like New Jersey and traffic tickets. In many cases, the DWI driver will also be suspended as a result of a prior conviction for a DWI. More often the DWI driver will be on the revoked list because he failed to pay drunk driving surcharges to the MVC. A driving on the revoked list can only make a DWI case much more complicated, and thus more difficult to resolve.

There are literally thousands of driving while suspended violations issued annually. Each and every year, the laws of New Jersey recognize new grounds to suspend or revoke a person’s driver’s license. A driver can be suspended or revoked for many grounds. The major grounds for suspension are as follows:

1. A driver accumulated 12 or more points.
2. A municipal court ordered suspension.
3. A family court may suspend a person’s driver’s license if he fails to pay his child support.
4. Failure to pay motor vehicle surcharges.

Nonetheless, most drivers still drive even if their driver’s license is revoked or suspended. New Jersey does not have any temporary, provisional or “work” license which would permit the driver to lawfully operate a motor vehicle during certain hours of the day, or for the purpose of traveling to work. Many other states have temporary driver’s license, even if the driver is suspended for DWI. However, New Jersey does not issue temporary or conditional driver’s licenses, and in my opinion it never will.

A suspended driver cannot drive at all for any reason. A suspended driver can’t drive to and from work or school. A suspended driver can’t drive to the supermarket to purchase food for the family. e can’t drive to obtain medical care. Even in a remote area where there is no public transportation, a suspended driver may not even lawfully drive, even if he is faced with a life-threatening emergency.

In my opinion, most Municipal Courts are fairly reasonable in dealing with persons charged with driving while suspended. However, if a person is driving while suspended because of DWI charge, then this is a special case, and the courts will want to “roast” the defendant.

2. VIOLATION OF THE DRIVING WHILE REVOKED STATUTE.

In order to prove that a driver is guilty of driving on the revoked list, the prosecutor must prove two elements. First, the prosecutor must prove that the driver actually operated the vehicle. Second, the prosecutor must prove that the driver operated the vehicle when their driving privileges were suspended. N.J.S.A. 39:3-40

In my experience, many times the prosecutor is overwhelmed, and he often does not have the necessary proofs to convict the defendant. The prosecutor has to obtain the suspension papers, and the proof of mailings from the MVC. Many times, the prosecutor will fail to obtain these crucial proofs. If this scenario occurs, then this is a perfect opportunity to pursue a downgrade of the charge to an unlicensed driver offense. The prosecutor may object, and then ask for an adjournment. However, stand your ground, and inform that judge that you want a speedy trial. This type of objection and pressure in some courts may convince the prosecutor to give you the unlicensed driver charge.

Sometimes a driver can also contest the “operation” prong of the driving while revoked statute. In many cases the police officer fails to appear for court. If the police officer fails to appear not show up for court, then the prosecutor can’t prove that the driver operated the vehicle. Thus, the case will be dismissed. In summary, the more a driver understands and protects their rights, then this will only increase their chances of getting a better deal at Municipal Court.

A driver can also try to contest the second prong of the driving while revoked statute as well. The best avenue for a driver to argue is that their underlying suspension is invalid. A driver can also argue to the Municipal Court that he never received any type of notice or never receive a hearing for his license suspension.

The most common practice is for a driver to adjourn their case, and then make any all efforts to restore his driving privileges. In most case, the driver can go to the MVC and pay his back surcharges. In other cases, a driver can pay any outstanding traffic tickets or parking tickets. The driver must obtain “paper proof” that he has satisfied any outstanding traffic tickets, parking violations or surcharges.

At court, the driver must give these items to the prosecutor. In most cases the prosecutor will then downgrade the case to an unlicensed driver charge if he is a first time violator. In summary, the key objective in any driving while revoked or suspended case is to address the suspension, and pay any outstanding charges to restore the license.

3. (A) SENTENCE FOR DRIVING WHILE SUSPENDED – FIRST OFFENSE.

In the field of Municipal Court practice it is not uncommon at all for clients to have multiple “prior” convictions for driving while revoked. Once a driver obtains three convictions, then there is mandatory jail time or slap time. I have had one client who has been convicted of 23 driving while suspended charges.

A first offender is subject to a punishment that includes both fines, and a loss of their driving privileges. There is a fine of $500. A driver can also lose his license for up to six months. However, in most cases the court does not suspend any license for a first time offender

(B) SENTENCE FOR DRIVING WHILE SUSPENDED – SECOND OFFENSE.

A second offender is subject to increased punishment. A second offender must pay a fine of $750. Moreover, a defendant is also subject to an additional license suspension of as long as six months. Most judges impose a 30 days driving suspension for a second offense.

In addition to the heavy fines a jail term must be part of the sentence imposed on a second offense. The length of the jail term must between one and five days. In most cases, the judges allow the drivers serve their “time” by coming to the court, to waste their day(s) by sitting there. A driver will obtain a day of jail credit for every court session that they appear at, and sit in at. In my experience some of the drivers still fail to serve their time by going to the court to sit there. Many drivers are just too irresponsible.

Most judges hate to put drivers in jail for driving while suspended charges. However, if the driver is a chronic violator, then the court will have no choice. Moreover, most counties have some type of SLAP program that will permit the driver to perform some type of community service. However, this certainly is a major inconvenience. Moreover, most counties now charge the drivers a daily fee for costs to supervise their slap program. Therefore, the driver is basically paying the county to supervise them while they perform their community service. In my opinion this is an outrage. Nonetheless, the New Jersey government is doing everything in their power to squeeze every dollar out of their bad drivers.

(C) SENTENCE FOR DRIVING WHILE SUSPENDED – THIRD OFFENSE.

A third or a subsequent offender is subject to a very harsh punishment. A third time offender must pay a fine of $1,000. The defendant is also subject to license suspension for as long as six months. Although there is no minimum period of suspension for this level offender, in most cases a third or more times offender will receive a substantial period of suspension.

The minimum fine is $1,005. A jail term must be part of the sentence on a third time offender. The typical length of the sentence is 10 days. In most cases, the driver can perform their sentence by enrolling in the county SLAP program. Enrolling in a SLAP program is betting than serving time in jail. However, the bad driver still must miss work. SLAP ruins all of your weekends. Moreover, it is embarrassing. Many times, a SLAP program will make you pick up garbage in your local town, while you are wear a bright orange vest. This can be very embarrassing if your friends and co-workers should happen to see you.

4. DRIVING WHILE SUSPENDED DUE TO
A NONPAYMENT OF A PARKING TICKET.

A driver who is charged with driving on the revoked list, and who is on the revoked list for the nonpayment of a parking ticket pursuant to N.J.S.A. 39:4-139.10, can present proof to the prosecutor or to the court that he or she has paid the old tickets.

If the driver can provide such proof, then the fines are only a max of $102. Basically, the driver can plead guilty to a driving while suspended charge because of the unpaid parking tickets. The prosecutor will try to sell this to the drivers. However, a driver still will get surcharges of $250 per year for three years. Moreover, the driver will be assessed 9 insurance points. The best approach, would be to try to get the charge dropped to an unlicensed driver, to avoid the insurance surcharges, and the insurance points.

5. SENTENCING ENHANCEMENTS.

(A) MOTOR VEHICLE ACCIDENT INVOLVING A PERSONAL INJURY TO ANOTHER TERM OF INCARCERATION.

The driving on the revoked list statute provides a mandatory term of jail for those defendants whose driving has resulted in an accident involving a personal injury to another person. Such a defendant must be sentenced to a minimum jail sentence of 45 days.

The triggering event for this sentencing enhancement, is that there must be a personal injury to another person in a motor vehicle accident. It does not even matter if the other driver was at fault in the accident. If a person is driving on the suspended list, and if they are in an accident, then they must serve a 45-day jail term.

In this type of situation, a person must find a very experienced municipal court lawyer to assist him. There are many ways to circumvent the “draconian” nature of this penalty. A 45-day jail term can really ruin a person’s life, and cause them to lose their job. The bottom line is to not drive while suspended. New laws are being enacted each and every year to combat these drivers. If you are in an accident, and if you are suspended, then you must retain my office, or a competent traffic court lawyer. If you “wing it,”you may soon find yourself watching a real lot of TV in the County Jail, and drinking a bunch of disgusting “bug juice” to wash down your prison meals.

(B) INCREASED SENTENCE FOR DRIVING WHILE SUSPENDED BECAUSE OF A DWI.

A defendant who drives while on the revoked list will be subject to an increased sentence if the suspension is for a DWI charge. The driver will lose their driving license for a period of an additional period of one to two years. This additional suspension will start once the DWI suspension is finished. Finally, a defendant under this sentencing enhancement must be sent to jail. The jail term ranges from a 10 to 90 days in jail.

(C) INCREASED JAIL TIME FOR MULTIPLE OFFENDERS.

Many drivers routinely drive even while they are on the suspended list. Many police officers have advised me that one out of four of the drivers that they pull over on routine traffic stops are on the revoked list. The numbers are even higher in some of the more disadvantaged areas of New Jersey. The privilege of driving is very expensive and many people just can’t afford it. These drivers hope that they can beat the system. Some drivers are just desperate, and on they must get to work no matter what the risk are. However, big brother is getting better all the time at busting drivers who are driving while on the suspended list. In some of the poorer areas of New Jersey, one out of every four drivers is on the suspended list. Therefore, it is really a number’s game. The more drivers that the police  can stop, then the greater the odds that they will arrest drivers for driving while suspended, registration charges, or for no-insurance violations. Unfortunately, many drivers get caught in the point trap or the insurance surcharge trap, and they are in a perpetual state of “driving while suspended.” Unfortunately driving while suspended really becomes a way of life for many of our fellow New Jersey citizens.

In my many years of practice, my record is representing a driver who had 23 driving while suspended charges. However, there are drivers out there who have had more.

The State has enacted a new law that increases the jail term for a driving while suspended term by ten days for every violation after the third. Basically, a driver will only go to jail for a third time violation of driving while suspended. A driver who is convicted or enters a plea for a third time driving while suspended must receive a mandatory ten day jail term.

The Legislature has provided additional sanctions for persons who repeatedly operate a motor vehicle while their driving privileges are suspended or revoked. In the event a driver is convicted of driving on the revoked list for a second or subsequent offense on or after June 24, 2002, the municipal court must increase the length of the term of mandatory incarceration under certain circumstances. N.J.S.A. 39:3-40(j).

The enhanced sentence is only triggered when the driver is also found guilty of a moving violation that was committed while he or she was driving on the revoked list. For purposes of this sentence enhancement, a moving violation means any violation of the State’s motor vehicle laws for which points are assessed by the MVC. Accordingly, if a companion moving violation can be dismissed as part of a plea agreement or downgraded to a non-point violation then no additional jail term can be imposed.

In summary, the sentences for repeated and serial driving while suspended cases are getting tougher. There are ways around these harsh sentences. However, if you are a serial violator, then you better get yourself a good lawyer. N.J.S.A. 39:3-40(j) gives the court the discretion to add ten additional days of prison for every violation after the third. Moreover, the statute is written in a mandatory fashion. Therefore, the court is not given wide discretion in their sentencing authority.

(D) INCREASED SENTENCE FOR DRIVING WHILE SUSPENDED FOR FAILING TO PAY SURCHARGES.

A driver can also face a nasty trap if he is busted for driving while suspended for failing to pay his MVS. surcharges. The MVS is authorized to impose surcharges on a driver for bad driving. If a driver fails to pay his surcharges, or if he fails to comply with an installment plan or defaults in making any payments, then the MVC is authorized to suspend indefinitely a person’s driver’s license. A driver who operates his motor vehicle when their license is suspended by the MVC for failing to pay surcharges, is also subject to an increased punishment as per N.J.S.A. 39:3-40(g).

The basic theme of this penalty is that there is an additional “MEGA” surcharge of $3,000 imposed if a driver is busted for driving while suspended, for not paying their surcharges. The local Municipal Court plays no role in imposing this additional $3,000 surcharge.

The good news is that in most of the cases, this additional penalty can be avoided. In most cases, the courts will adjourn the case, and give the driver time to pay up their back surcharges. Moreover, the driver can make a payment plan with the MVC to pay their back surcharges. If the driver gets paper proof that they have addressed the back surcharges, then in most cases, the courts will downgrade the case to an unlicensed driver charge. Therefore, this will enable the driver to avoid the nuclear bomb $3,000 surcharge.

6. COLLATERAL CONSEQUENCES OF
DRIVING WHILE SUSPENDED.

Every person who is convicted of driving while suspended, will also be subject to harsh collateral consequences. These consequences will continue to affect the defendant and his or her ability to lawfully drive for years to come. They will also dramatically affect the price he or she will have to pay for liability insurance coverage.

(A) ADDITIONAL SURCHARGES.

If a driver is convicted of driving while suspended, then he will be assessed a surcharge of $250 per year for three years. The surcharge bill will usually be sent to the driver within a few weeks of the conviction, and it must be paid, even if the person’s driving privileges remain suspended.

(B) INSURANCE ELIGIBILITY POINTS.

The insurance companies doing business in New Jersey are entitled to assess insurance eligibility points based on incidents of driving misconduct against the records of their clients in order to rate their policies. An accumulation of nine points or more will usually disqualify the insurance from purchasing auto insurance. A conviction for operating a motor vehicle while on the revoked list carries with an assessment of nine insurance eligibly points. These points remain on the defendant’s insurance record for three years.

(C) RESTORATION FEE.

At the conclusion of the defendant’s period of superior, he or she will be required to pay a restoration fee to the Director of the Division of Motor Vehicles in order to become re-licensed. The fee is $100 and it will be billed to the defendant within a few weeks after the conviction.

(D) PERMANENT RECORD OF CONVICTION.

The entry of a conviction for driving while suspended will permanently remain on the defendant’s driving abstract and driving record as a permanent entry, on the defendant’s driving record as maintained by MVC. This can be disastrous for drivers who have C.D.L. licenses, or who are truckers. Many truckers simply will not be able to obtain employment if they have a prior driving while suspended conviction on their record. There is no method to expunge a prior conviction for driving while suspended either.

(E) ADMINISTRATIVE SANCTIONS BY THE D.M.V.

Finally, the act of driving while on the revoked list will be punished on an administrative basis by the MVC when there is evidence when the driver drove while he or she was suspended. The MVC  computer is programmed in such a way as to check the driving status of each licensed driver every time a transaction is recorded on the driver’s record. Thus, if the MVC received a transmittal from a Municipal Court that a licensed driver was convicted of speeding, careless driving or any other moving violation, then the MVC computer will check to ascertain if the defendant’s driving privileges were suspended or revoked on that date.

Thereafter, once the driver is busted, then the MVC will send another notice to him or her advising them of new additional driving while revoked charges. The notice issued by the MVC will include a proposed suspension of the defendant’s driving license for 180 days. The MVC will also impose a surcharge on the driver for $250 for three years. A driver who is faced with this charge, can fight the case by requesting a MVC hearing.

*The entry of conviction will permanently remain on the defendants driving abstract and driving record as maintained by the MVS.

7. New Sentencing Enhancements

There are always new sentences that are constantly being imposed for driving while suspended.  N.J.S.A. 39:3-40 provides an increasing range of penalties for people who have been convicted for driving while suspended. Beyond the basic penalties, the law also provided for extra, additional penalties, depending upon the reason for the suspension. Typically, if the reason the defendant defendant has been placed on the revoked list is from a DWI or a refusal suspension, a suspension for driving without liability insurance or not paying surcharges to the MVC, then the sentencing judge must impose a serious of additional sanctions over and above the basic penalties. Thus, a defendant receives double punishment: one set of penalties based upon the reason for the underlying license suspension.

A. Enhancement for Suspension Due to Driving Without Liability Insurance

A defendant who drives while on the revoked list will be subject to sentencing enhancements if the reason for the underlying suspension is for driving without insurance. First- time offenders are subject to a one-year suspension. Second- time offenders will lose their license for a two-year period. The sentencing enhancements for such a defendant are in addition to the basic penalties for driving on the revoked list. Thu,s in addition to the required basic penalties, a defendant will also receive a second fine of $500, $33 court costs, and a $6 surcharge. The defendant could also lose his license for a period ranging from one to two years. Finally, the defendant could also be sentenced to jail for as along as 90 days.

B.

Most people think that the only issue in a drunk driving case is whether the driver was intoxicated. Nothing could be further from the truth. In fact, whether the driver was intoxicated may not matter at all. The first and most important issue in any drunk driving case isn’t whether the driver broke the law, but whether the police broke the law. Yes — you read that right.

Many drunk driving cases revolve around the conduct of the police, not the guilt of the driver. If the police obtain evidence of guilt illegally, in violation of the driver’s Constitutional rights, then that evidence is not legally admissible and can’t be used against the driver in court. (This is known as the “exclusionary rule,” and it applies to all evidence which is unconstitutionally obtained by police as well as some evidence obtained in violation of state statutes.)

For example: the Fourth Amendment of the United States Constitution does not allow stopping a motorist on a mere hunch. If a driver were stopped by police merely on a hunch that the driver was intoxicated, all of the evidence derived from that illegal stop would be “suppressed” — excluded by the judge from evidence because it was illegally obtained. That means the test results, the “field sobriety tests,” and even a driver’s statements to the police can all be excluded as evidence.

Understanding how a police officer’s conduct can affect a drunk driving case is a lot like understanding how a row of dominos might fall. It doesn’t matter where in the row you start knocking down the first domino. No matter where you start, every domino that follows the first to fall will fall also. Attacking police conduct in a drunk driving case is similar — it doesn’t matter where in the sequence the officer exceeded his legal authority. Whatever evidence follows is likely to be excluded because it is tainted evidence — evidence derived, directly or indirectly, from the officer’s unconstitutional or illegal conduct.

Police officers cannot stop a vehicle on a mere hunch, and they cannot arrest without “probable cause.” The police must have “reasonable suspicion” to stop a vehicle. Generally, these are subjective observations by the police based on something unusual about the way a person is driving. This is a very very low standard and it can be satisfied by virtually anything which appears out of the ordinary that might be a sign of a driver being under the influence. A general rule: if the police want to stop you and investigate something, they will, and justify their actions afterward.

Common things which have constituted “reasonable suspicion” are” license plate light out; brake lights not working; tail light out; headlight out, loud music, apparent underage drivers out late at night; turning to wide, turning to narrow, driving to fast, driving to slow, unusual activity in the car – having sex, and drinking from a shiny container. Basically, the facts supporting reasonable suspicion are only limited by the imagination of the police. In fact it is not unusual for the police to stop a driver with a license plate light not working, and mysteriously the next day the light starts working again. In court it is your word against the police. Judges tend to give the police the benefit of the doubt absent extraordinary circumstances, direct contrary proof, or the officer’s bad reputation.

If the police stop you for any traffic violation, no matter how minor, it is sufficient to justify the traffic stop. Once you are stopped, the police must then establish reasonable suspicion that you might be driving impaired. Some of the more obvious things the police look for are: smell of intoxicants; slurred speech; bloodshot watery eyes; admission to drinking; alcohol containers in the vehicle; and mood swings i.e. laughing one minute and crying the next. Observation of any of these would establish “reasonable suspicion” for the police to continue the investigation. The reason a police officer asks you “have you been drinking tonight” is because if he gets a “yes” answer from you, he right then and there has established “reasonable suspicion” merely because you were driving the car and admitted to drinking.

In addition, during holiday seasons, police officers typically set up field sobriety checkpoints where they routinely stop every driver who passes through the checkpoint. These checkpoints do not require the officer to observe anything suspicious about a person before stopping and investigating someone.

Probable cause to arrest for drunk driving is also required, before a police officer can ask a driver to submit to a blood test. “Probable cause” is an objective standard, one required by the Constitution itself. An officer’s opinion isn’t probable cause, and merely consuming alcohol and then driving is not “probable cause” to arrest for drunk driving.

Often, police rely on phony evidence to justify an stop. Police also rely on bogus evidence.

Many police officers use the “finger-to-nose” field sobriety “test.” But the National Highway Traffic Safety Administration (NHTSA) studied “FSTs” in the l980′s. In the first attempt to apply scientific principles to field sobriety testing, the federal government authoritatively determined that no correlation existed between level of alcohol concentration and failure on the “finger-to-nose” test. No one could do it, even sober. So, the feds rejected it as a standardized test.

So why do police who know this still use the “finger-to-nose” “test.” Because they know it can’t be done. By using the “finger-to-nose,” these police are attempting to create probable cause by relying on a bogus “test.” It is a set up. They ask you to do a test they know cannot be done and then use it to justify arresting you for DWI.

“Field sobriety tests” are themselves something of a police scam. Standing on one leg is the natural activity of a flamingo, not the human being. Walking heel-to-toe is inherently difficult and imbalanced, since the human body is designed for walking with one foot in front and to the side of the other. Police claim these tasks determine intoxication by establishing that a driver has poor balance. But putting a person into a stance that is inherently imbalanced doesn’t measure balance. What difficulty balancing on one leg establishes is that the driver is human. That’s why police have to practice doing these tests.

All of these issues — and many more — can affect whether a stop or an arrest were legal, and whether police evidence can actually be used in court or, instead, must be “suppressed” because it was unlawfully obtained by an illegal stop or arrest.

When police break the law, if they act illegally in making a stop, arresting a driver, or requiring a test, that evidence can not be used in court. No evidence means no conviction.

Never assume a police officer’s actions were legal merely because they were the actions of a police officer. Cops are human and they make mistakes, lots of mistakes. It doesn’t take much education to be a cop. “Certification” as a New Jersey law enforcement officer requires a high school degree, no felony convictions, and a few weeks of training at a police academy. By contrast, being a lawyer takes four years of college and three years of law school. Lawyers know more about the law than cops do. An experienced DWI defense attorney knows more about DWI’s than the police as well.

THE “I WASN’T DRIVING DEFENSE“

If you pulled off the roadway to sleep it off, you may not be guilty of DWI.

You are driving home after having a few cocktails. You realize that you have had a few too many and decide to pull off the road to “sleep it off”. Depending on the circumstances i.e. where you pull off, what you do with the car, what you do with the car keys, if the car was running at the time the police make contact, you may have a valid defense.

In New Jersey, it is a defense to a DWI prosecution if you pull off the roadway under circumstances which suggest you are removing yourself as a threat to the public by relinquishing control over the motor vehicle. This defense is fact specific. If your case falls within this category, you must contact an experienced DWI practitioner and discuss this defense to your DWI charges.

THE “INTERVENING DRINKING DEFENSE”

Drinking AFTER driving isn’t drunk driving.

You get home after a hard day, have several quick ones, and then the cops show up at the door. They barge into your house or apartment and refuse to believe that you’ve consumed alcohol AFTER you were driving. Then they arrest you for drunk driving.

You have a defense. Several, in fact. One is that the police entered your house illegally, without a warrant and without valid consent. But the other defense is the obvious defense. You weren’t drunk when you were driving. You were drinking AFTER you were driving. Intervening drinking is a valid defense to a drunk driving charge. It can be the basis for challenging the arrest as illegal. If the arrest is ruled illegal in court, then the case against the driver will fall apart. (We have more on probable cause challenges to drunk driving cases at this page: the PROBABLE CAUSE DEFENSES.)

If you were drinking after you were driving, this defense may apply in your case. Don’t assume it doesn’t matter merely because the cops didn’t pay any attention — genus doesn’t wear badges. Be sure to save any alcohol containers from which you were drinking, bottles and glasses.

THE “FIELD SOBRIETY TEST DEFENSE”

Using “Field Sobriety Tests” to discredit blood test evidence. Most people think of “field sobriety tests” as a police tool to justify arresting someone for drunk driving. But “FSTs” can turn into a mechanism for challenging blood test results — one that can be very hard for the prosecution to handle. If a driver’s blood test results were high — 0.20 for example — then the driver’s performance on field sobriety tests can contradict the accuracy of the blood test results. A driver with a 0.20 alcohol concentration is at twice the highest “legal limit.” If that driver doesn’t appear ‘falling down drunk’ in performing the field sobriety tests, then the test results are contradicted by the “field sobriety tests.”

Field sobriety tests are designed to isolate persons who are only slightly over the “legal limit,” not just those who are obviously drunk. The standardized field sobriety tests developed by the National Highway Traffic Safety Administration were developed for the specific purpose of allowing police to distinguish those with alcohol levels of 0.80% from those below that level. Moreover, it stands to reason that the higher the alcohol level, the progressively poorer one’s performance should be on FST’s.

Faced with a defense which essentially pits two components of the prosecution’s case — the FSTs and the blood test results — against each other, a prosecutor is stuck with having to argue that FSTs don’t mean much. But it is the prosecution which will have put the FSTs into evidence, and it will be obvious that police officers routinely rely on them. In a case in which the defense need only establish a “reasonable doubt” of guilt to win, the “FIELD SOBRIETY TEST” DEFENSE can turn a prosecutor’s own evidence against him.

This defense can also be used in conjunction with other defenses, to form a cohesive, multi-fronted strategy. Where test results are challenged as inaccurate for other reasons, such as scientific challenges, poor machine maintenance, or many other challenges, depending on the facts and circumstances of your case, the FIELD SOBRIETY TEST DEFENSE can effectively reinforce these other defenses.

THE “NO WARRANT DEFENSE”

Police can’t come into your house without a warrant — if they do, the violate the law and lose the case.

Every year, police violate the Constitutional protection of the home to make drunk driving arrests. Though a driver can’t run from the police and hide in his home (that’s the doctrine allowing warrantless entry in “hot pursuit” of a fleeing suspect), police have no legal right to enter a house merely because the occupant is someone they think was driving drunk.

A police officer who barges into a house without an occupant’s consent and without a warrant is violating the Fourth Amendment, and any arrest made in the house is illegal and invalid. Evidence obtained as a result of that arrest — including test results, statements of the person arrested, and police testimony about their observations of that person — will be “suppressed,” which means it can’t be used as prosecution evidence. This rule, however, isn’t restricted just to police entry into the home. Even if police officers are legally admitted to the house — for example, your spouse lets them in voluntarily — that doesn’t mean they can go anywhere they want inside the house. Police are subject to the same rules as any stranger or salesperson allowed into your home. That is, they have to stay where they are put — they can’t roam around looking for their suspect or for evidence. If they do, they violate the law as fully as if they’d entered illegally.

In the Welch case, the police entered without a warrant and then rousted the sleeping driver in his bedroom.

That was illegal then, and it’s illegal now. If police entered your house without a warrant to make an arrest, then this is a legal defense which you should be sure to have raised in your defense.

THE “INTERFERENCE WITH THE RIGHT TO COUNSEL DEFENSE”

The police cannot deprive you of your right to consult with an attorney during a DWI investigation. However, you do not have right to unreasonably delay the investigation in order to contact an attorney. The ground between these two positions is where many a battle is fought in DWI defense.

If you are under arrest, you must be advised of your right to remain silent. Please note however, if the police do not read you your rights, your case is not dismissed. The sanction is that anything you told the police after you were placed under arrest cannot be used as evidence.

When are you considered under arrest? Generally, when you are are handcuffed and not free to leave. Legally, it is defined when your freedom of movement is restricted by the police where a reasonable person would believe they were not free to leave. Do not confuse this with “investigative detention”. In New Jersey, the police can detain your for further investigation. How long this can be is generally settled on a case by case basis and is the subject of much litigation in a DWI defense.

Essentially, when the police are conducting field sobriety tests, this is investigative detention, you are not under legally under arrest, but you are not free to leave. If you try to leave, the police of course will not let you, they will continue to detain you, and if you refuse the field test and/or refuse to cooperate in the investigation you will be place under arrest for DWI based on the subjective information they police have at that point.

An investigative detention cannot be any longer than is necessary for the police to accomplish their task. This is always the exact amount of time the police need to establish probable cause to arrest you for DWI.

OTHER DEFENSES

Defenses can’t always be pigeonholed. Your defense may be unique. Defenses to drunk driving cases are best when they’re custom tailored to your case. If you don’t think the defenses outlined on this page apply to your case, that doesn’t mean there aren’t defenses. It means you need to have an talk with an attorney who focuses on drunk driving defense. The best defense to your drunk driving case may be one that hasn’t been mentioned on this page — because it is unique to the facts of your case.

Costs of a DWI Conviction

Action                             Cost
Cost to Tow Your Car               $150
Car Storage Fee Per Day            $50
Minimum Fine                       $250
Safe Neighborhood Fund             $75
Victim Compensation Fund           $50
Law Enforcement Assistance Fund    $30
License Reinstatement Fee          $100

Probable Additional Costs

Action                            Cost
Alcohol Education Classes         $100
Auto Insurance Increase           * varies
Auto Insurance Surcharge          $3,000

The bottom line is that a DWI conviction is going to cost you a fortune. After the municipal court judge fines you to death, then the MVS will sock you with $3,000 worth of surcharges. Most people go on the installment plan and $83 per month. Surcharges can’t be avoided. Even if you move out of New Jersey, you still have to pay them. The MVS will tell your new state about the surcharges, and you eventually will get your new State’s license revoked if you do not pay your New Jersey surcharges.

This is a table showing the costs of a DWI conviction here in New Jersey. As you can see, the average cost for just pleading out is at least $3,805.00, and this does not include the cost to retain a lawyer.

Moreover, in my experience, most convicted DWI driver’s motor vehicle insurance is doubled for at least five years after the conviction. Basically, your car insurance payment becomes your mortgage payment.

In addition, you need to seriously keep possible jail time in mind. For a first offense, a driver most likely will not received any jail time. But if you are arrested and convicted for a second DWI offense, then you are looking at mandatory jail time of 48 hours to 90 days.

In simpler terms, in many cases a DWI lawyer can’t beat the case. However, many savy lawyers can be invaluable to keep you out of the slammer.

In summary don’t be cheap, go out and retain a good DWI lawyers. Even if the lawyer can’t beat the case for you, most of them can find a way to keep you out of jail. Jail is a miserable place, and the money that you spend on a DWI lawyer probably will be some of the best money that you have spent in your life.

Police officers have specialized training designed to teach them to intimidate and keep suspects off balance by use of commands, tone and phrases intended to “Beat You Down” emotionally, and thus keep control of a situation at all times. Most cops expect you to obey short, terse commands. Cops do not expect you to ask them to explain “why” they are making these demands. In trying to manage, direct and control your behavior, cops are better able to predict and control the outcome from the traffic stop. If the traffic stop is video or audio taped the cop will appear professional and you will look nervous, stupid and impaired, after which they will have no reason not to arrest you, despite your obvious cooperation. Beware of the following Cop Tricks.

1. Record by video or audio the statements, confession, and admissions of drivers at the scene.

Response: While this should be no surprise to many, some people are not aware that the police are commonly using video cameras to record the events of traffic stops. These cameras are mounted on the top of the dashboards of the police vehicles and may be swiveled 360 degrees and may even be recording people in the back seat of the police vehicle. The police can control the operation of this camera from a switch located on the belt worn by the officer.

On exceptional occasion, a dishonest officer will attempt to manipulate evidence by taping only the statements he wants heard by tampering with the audio switch, however this is rare. So presume you are being recorded and take advantage of this fact by turning the event into an opportunity to test the offers reasonableness and patience.

NOTE: Many police departments in New Jersey do not video tape DWI investigations and arrests. This is for very obvious reasons. The videotape doesn’t lie and speaks for itself. Cops sometimes fudge a little. Sometimes they fudge a lot although we hope they won’t. While we would like to think that our police are honest, objective and fair and all times nothing could be further from the truth. The DWI investigation techniques and practices are not honest, objective or fair. Cops are trained to use these DWI investigative techniques so they don’t know any better. They are brainwashed. The DWI investigation techniques and practices are “dishonest”, “subjective” and “unfair”. They test you for how “normal” you are by asking you to perform “abnormal” tasks under very stressful conditions.

2. Get the driver to cooperate in exposing eyes, face and nervous hands to the officer.

Response: When the police officer walk up to your vehicle: (1) have all the windows up; (2) have your drivers license, registration and proof of insurance. When the cop arrives he/she will tell you to roll down the window. Do so, but only lower the window about three (3) inches and say “I can hear just fine officer”. Do not make eye contact with the COP and continue looking straight ahead. The video camera, if it is working, may show your forward gaze from the position of the back of your head. If you have allergies, you should be careful not to expose yourself to unnecessary contact with allergy irritants by opening the window completely or getting out of the car. Many people carry paper masks or use handkerchiefs to prevent such exposure, so don’t be shy to protect yourself, just because the cop wants to ask a few questions.

The cop when he sees that you are masked or covering your nose will in all likelihood ask you to step out of the vehicle. He has authority to do that, but you may certainly ask to “stay inside while answering his questions, as you have allergies”. This should always be a truthful statement. Carry a handkerchief and use it as needed. There may be many other valid reasons to avoid exposure and covering your nose and mouth so as to avoid contamination or spreading infectious illnesses such as colds or flu. Just politely tell the COP what the reason is so that too will be recorded in his inevitable arrest report. Other good reasons not to want to leave the vehicle could include hurting or injured legs, ankles, knees or back from anything from arthritis, over-exertion or other physical condition. Be truthful with the COP about your circumstances. Because of his training, the COP will insist that you step out. You should comply with his request but you are entitled to complain, limp or continue covering your face, if you are actually experiencing pain or discomfort. Be polite and courteous when the cop asks questions, but NEVER answer any of his questions about driving, drinking or doing drugs even if the COP says he smells something “about your person”. YOU HAVE AN ABSOLUTE RIGHT NOT TO ANSWER ANY COP QUESTIONS. The cop will attempt to invade your personal space by getting close to you and shine a flashlight in your face. If this happens cover your eyes and respectfully complain out loud that “it hurts your eyes” if in fact it does. This is important as you want the COP to document in his report your actions. If the COP is fair, not very likely, he will write your complaints in his inevitable arrest report.

3. Get the driver to voluntarily submit to road-side Field Sobriety Tests.

Response: Again, the cop will likely say to take these tests for him “just to see if you are OK, to drive.” These tests will usually consist of (1) HGN (eye-examination/test); (2) Walk and Turn (heel-to-toe); and (3) One Leg Stand with count to thirty. Other exercises such as 4. counting backwards, 5. saying A-B-C’s and 6. counting fingers are also used by some officers. However, they are not “standardized” and have fallen into disuse. These “dog and pony shows” will only amuse the COPS at your expense, and be used against you at trial, so NEVER perform them.

Response: If you think you want to try and do the field tests the following is suggested. Cops will ALWAYS tell you to assume a particular position for each test. Even with the eye test (HGN) he will tell you to stand still and not move your head. Tell the COP that “you do not want to take any positions for any of the tests until the officers has fully demonstrated them to you.” After he does demonstrate them, Ask him/her, “how long did it take you to learn how to do that?” Whatever the officer says then ask “How much practice will I have before I do the final test?” The officer will not allow any practice per his training, and when he tells you so, say, “That doesn’t seem fair, so if they are voluntary, I will take them after I get as much practice as you got.” By this time, you will have so frustrated the officer from his regimented DWI investigation procedure he may even say something really stupid which he will regret if the judge or jury hears it. You can only hope that if this happens the video camera is working properly. However, don’t be surprised in this type of situation that the video camera just mysteriously happened to not be working at the time of your DWI investigation.

4. Threaten to arrest you if you don’t cooperate and submit to field sobriety tests.

Response: Surprise! The cop is likely going to arrest you anyway! If the COP thinks, imagines, hallucinates, speculates, guesses, hears about from some third party you weave in the road, and after the traffic stop smells alcohol, sees bloodshot eyes or any other symptoms of alcohol or drug impairment whether real or imagined, YOUR DONE! The cop will arrest you because he is required by law that you be under arrest for DWI in order to give you a breath, blood or urine test.

However, in New Jersey, the cop cannot force you, under pain of driver license suspension, to submit to breath, blood or urine tests if you are not under arrest for DWI! This is the reason for the elaborate road-side investigation: cleverly guiding you to voluntarily give evidence i.e. field sobriety tests and admissions, he doesn’t have so he can arrest you for DWI. The cop might appear foolish if he arrests you for DWI after you have passed the FST’s. However, if you give the COP the evidence he needs at the scene, you just made his job a lot easier and provided evidence, which you don’t have to provide, that could help lead to your conviction for DWI. Simply, the cop is going to arrest you if you refuse the FST’s. That’s fine. Remember, you have to be under arrest in order for the cop to be able to legally give you the breath, blood or urine tests.

If you don’t give them the FST’s and/or admission evidence, at the scene, the state will have a much more difficult time getting a conviction later at trial. Don’t submit to any road-side tests! In New Jersey, field sobriety tests (FST’s), usually HGN, Walk and Turn, and One Leg Stand are completely voluntary and you can use this to your advantage.

5. Ask You To Take A Voluntary Breath Test With A Hand Held Device.

Some cops will ask you to take a preliminary breath test to “see if you are ok to drive” or some other excuse. They could ask you right after they stop you, after they give you the FST’S, or right after the DWI investigation has been completed.

Response: Tell the cop that you are not going to take the test. Do not confuse this breath test with the other breath test which you must submit to or face a 12 month driver license suspension. How you tell the difference is that the cop must read you the implied consent admonition prior to giving you the test.

1. The police make an unconstitutional stop of your vehicle.

The police can’t stop your vehicle on the basis of an anonymous call, or if there is no probable cause. In most cases, the police must stop the driver for some type of moving violation to justify the DWI arrest. If there are no sufficient grounds to substantiate the stop of your vehicle, then make sure that your counsel files a motion to suppress. This is quickly becoming the strongest DWI defense in New Jersey.

2. The police can’t question a person without informing him or her of their Miranda rights.

In many cases the drivers get scared and they confess to drinking and driving. Always be cognizant of the fact that the police must issue a driver their Miranda rights before he or she can be questioned.

3. Stopping a vehicle without probable cause.

The police can’t stop a driver merely because they are suspicious that the person was driving under the influence. The police have to substantiate the traffic stop with a moving violation such as weaving, speeding, or an improper lane change. If the police can’t substantiate any probable cause to justify the stop, then the DWI case will be dismissed.

4. Stopping a vehicle just to check the driver’s license, registration, and insurance.

In many cases the police will stop a vehicle only to check the status of the person’s driver’s license, registration and insurance. If the police then arrest the driver for a DWI, then in many cases a good lawyer can contest the validity of the stop on the lack of any probable cause.

5. Stopping a vehicle for no reason at all.

In many cases the police are really on a “fishing expedition” to try to arrest as many DWI drivers as possible. This type of attitude is especially prevalent on weekends and in the summer. The police must have a valid reason to stop a driver. The common reasons to justify a valid stop are for speeding, weaving, or for an improper turn. If the police have not issued a moving violation to a DWI driver, then in many cases the DWI case will be dismissed because there is no probable cause.

6. Not having their alcotest operation certificate renewed.

A police officer must be qualified by the Attorney General and by the New Jersey State Police to operate and administer an alcotest machine. A police officer who seeks to administer an alcotest(s) must be certified. The certification is essentially a licesnse to conduct breath tests. Like any license it has an expiration date. An alcotest operator’s certificate is only valid for the year in which it is issued, and for the following two years. N.J.A.C. 13:51-1.8(a). In many cases, especially in high crime townships, the police do not keep their breathalyzer certifications up to date.

7. The alcotest machine has a history of malfunctioning.

A lawyer should always check out the certificates of the alcotest machine. If the DWI case has a marginal BAC reading, and if the alcotest machine has a history of being unreliable, then this fact can assist the defendant to win the case.

8. The police fail to read DMV Standard Statement 36 to the DWI driver.

The DMV Standard Statement 36 is an eleven-paragraph page that must be read to all DWI drivers. The police will then ask the DWI driver to sign at the bottom of the statement. If the police do not read the entire DMV Standard Statement 36 to the DWI driver, then in many municipal courts they will dismiss the case. This is a great defense, and it should not be overlooked.

9. Proper Operation of the Alcotest machine.

The Alcotest 7110 is alleged to be foolproof. Nonetheless, currently there are still many requirements that the police officer must comply with to properly operate the alcotest machine. In a DWI case the prosecutor must demonstrate that the alcotest machine was used in accordance with these accepted procedures. The prosecutor must demonstrate that the alcotest machine was properly operated by the police officer who conducted the breath test.

10. The police fail to wait twenty minutes after the arrest to conduct the breath tests.

The police must wait at least twenty minutes after the arrest to conduct the breath tests. The reason for this waiting period is to permit the DWI driver’s alcohol residue to dissipate. Many courts will recognize this defense and dismiss the case if there is a violation.

11. The police fail to wait ten minutes between the breath tests.

The police must wait at least ten minutes between the breath tests. Sometimes, the police become careless and they overlook this requirement. This is a great defense, and it does occur in some cases.

12. Attack the credibility of the police.

13. The State failed to provide an after-certificate.

The prosecutor must provide an after-certificate that proves that the alcotest is in proper working condition after the time of the DWI driver’s arrest.

14. The paperwork is all messed up.

The police must prepare “books of paperwork” in order to document their DWI case. In many cases, the police do a terrible job in documenting their DWI case. Remember, most police hate paperwork, and in many instances the police officer won’t arrest a drunk driver so that they can avoid preparing all of the paperwork. If the paperwork is sloppy, then this can be used to impeach the police officer(s), and to create holes in the State’s case. Always be aware for errors in the labeling of the breath samples, and of the alcotest machines. Also be aware for discrepancies of the times marked in the police reports. These minor points can be used to try to develop weak links in the State’s case.

15. The police fail to conduct the field sobriety tests correctly.

The police must be trained to correctly conduct field sobriety tests. In one of my cases, the police did not even have the proper training and education to conduct field sobriety tests. My client beat the DWI case on this defense.

In most of the cases, the police will also blast the DWI driver with a bunch of traffic tickets as well. In most instances, the police will also issue the DWI driver a traffic ticket for reckless driving, an unsafe lane change, and/or speeding. The most common traffic ticket that the police write up the driver for is reckless driving. This is a five-point ticket. Many times if the police mess up the DWI case, then the driver can still be convicted of reckless driving, and they will still lose their license for 30 to 60 days.

In most cases the prosecutor will “merge” all of the tickets, if the driver pleads guilty to DWI. The term merge basically means disappear. There is a substantial risk if the driver goes to trial on the DWI, when there are also many outstanding traffic tickets. At the trial, the driver can be found guilty of both the DWI charge, and of the traffic tickets. This can be a disastrous result because the driver will receive additional surcharges, and the cost of their automobile insurance will be increased even higher.

Choosing the Right DWI Lawyer

Finding a lawyer who is experienced in handling DWI cases should be your top priority. DWI laws are constantly changing and the consequences of a conviction are becoming harsher and harsher, not to mention the negative impact of being labeled a criminal for the rest of your life.

If you have never been through this before, you probably don’t know who to call, and it seems lawyers are a dime a dozen. If you have been through this before and are searching for a different lawyer, you know just how important it is to hire an experienced DWI lawyer. You need to understand just because someone is a lawyer does not mean they have the necessary DWI experience to defend you and your DWI case.

Furthermore, not knowing what to look for in a DWI defense attorney makes the challenge of finding the right lawyer even more difficult. It is extremely important to find an experienced, competent DWI defense lawyer who knows how to investigate your case for factual and legal defenses, visit the scene with a camera for potential trial exhibits, interview witnesses, suppress evidence, compel discovery of offense reports and breath test maintenance records, negotiate for a dismissal or reduction in charges, obtain expert witnesses for trial, attempt to save your driving privileges, and who knows how to win the “difficult” case. In essence, you need a lawyer who will fight for you and leave no stone unturned in defending you. Remember, a conviction on your record will be there forever!

Contrary to popular belief, local bar association referral services are not necessarily a good source of information since they do not screen for qualifications. You are simply given the next name on the list. Likewise, any lawyer can take out an ad in the Yellow Pages, regardless of experience or ability.

You should attempt to retain a lawyer who devotes the majority of their practice to defending DWI cases. No lawyer can give you a guarantee on the outcome of your case (if one does, beware!); however, retaining a lawyer who concentrates on DWI defense will maximize your chances of being found Not Guilty.

If you do not have a sense of comfort and confidence after meeting with a lawyer about your case, you should continue to look.

After meeting with the lawyer, the following should be evident:

* The lawyer has extensive experience in litigating and trying DWI cases;
* The lawyer has a reputation for going to trial (not for pleading clients guilty);
* The lawyer has won difficult cases (they are not all talk);
* You feel comfortable in the manner in which the lawyer communicated with you (If you are not comfortable, do you think the jury would feel comfortable?);
* The lawyer listened to you (or did they do all the talking?);
* The lawyer was genuinely interested in you and your case;
* The financial agreement was clearly defined; and
* You have a strong sense of confidence in their ability to professionally and competently handle your case!

Another very important point to emphasize is to not overpay when you choose a lawyer. There are some DWI cases that just can’t be won. It makes no sense to a person to spend thousands of dollars on a DWI defense, when your chances to win are very low.

Also don’t be misled into believing that your lawyer is better if you pay him or her a larger retainer. This is a big myth! In New Jersey there is no right to a jury trial in a DWI case. Therefore, a DWI defendant can only win so many cases. If New Jersey gave defendants a right to a jury trial in a DWI case, then I am convinced that there would be a much higher rate of not guilty verdicts in DWI. However, New Jersey undoubtedly would increase the penalties for DWI if a right to a jury trial ever came into existence.

Given these circumstances, there really is no Johnny Cochran of DWI lawyers. Be smart when you choose your DWI lawyer. Don’t be talked into paying a $5,000 retainer, when your chances to prevail are low to begin with. There are many very qualified lawyers in New Jersey who will represent DWI defendants for an affordable fee.

1. Arraignment

The DWI driver is usually arraigned within a week or two of the initial arrest. If the driver hires an attorney prior to this proceeding, many times the attorney can waive your presence for the arraignment. Some judges require that you be present whether you have a lawyer already or not. At the arraignment the judge will advise the driver of the significance of the charges, and the potential sentencing ramifications.

2. Pre-trial Conference

After the arraignment date, the court will set the case down for a trial within four to six weeks of the arraignment date. If the police reports have been made available to your attorney by that time, and all of the defenses to the charges have been determined, the case can be resolved at that time either through trial or plea. However, in most cases, numerous postponements are required to obtain full “discovery”, determine your best defenses, and consult with potential experts. Many times the municipal courts rush defendants and do not give them adequate time to prepare their defenses.

3. Suppression Hearing

The court may suppress some or all of the evidence against you if your constitutional rights have been violated. A good attorney will file motions to suppress after receiving the “discovery” or police reports regarding your arrest.

4. No Plea Bargaining

The Supreme Court has barred any plea bargaining regarding any DWI charges. The State must be able to prove its case against you beyond a reasonable doubt, or it can choose to dismiss or downgrade to a lesser charge that is more appropriate to the offense.

5. Trial

New Jersey does not allow for jury trials in DWI cases. Your case will be heard before a Municipal Court judge. There is a “sixty day” rule that is feared by all municipal courts. The AOC, or the Administrative Office of the Courts has directed that all municipal courts try to try DWI cases within 60 days from the day of arrest. The “sixty day” rule is very often impossible to comply with. Many municipal courts relax the “sixty day” rule if there are legitimate reasons.

6. Sentencing

If a driver is convicted, the court must impose a sentence after a conviction at trial or after a plea bargain is accepted and a plea entered. The sentences for a person convicted of DWI may include jail time, community service, alcohol classes and fines.

7. Appeal

Cases that are not won in the Municipal Court may be successful on appeal. However, your odds of prevailing at municipal court are at most one in three. Moreover, appeals are very expensive. There are filing fees involved, and the defendant must also pay to obtain the transcripts of the trial.

8. Post-Conviction Relief

You may challenge an old DWI conviction. It becomes necessary to check prior convictions when you are arrested for a new DWI. The penalties for a second or third DWI become enhanced. If a driver was not properly represented in the prior conviction, or if he did not give an adequate factual basis, then the defendant may make a challenge to that original court to have that DWI conviction reversed.

In most cases, all the prosecutor has to prove is that the driver’s BAC was .08% or more. It is a violation to operate a motor vehicle in New Jersey with a blood alcohol concentration of .08% or more by weight of alcohol in the defendant’s blood. The BAC sample must be taken within a reasonable period of time after the operation of the motor vehicle. Remember even if you appear perfectly sober, if your BAC is .08% or more, then you are “cooked.”

What is the State’s Burden of Proof?

In relationship to the burden of proof, the manner in which the lawyer communicates (and educates) just how high “beyond a reasonable doubt” is to a jury, often is the difference in a conviction versus being found not guilty of the drunk driving charge. It is not necessarily what the lawyer says; rather, it is the manner in which he says it. If the jury does not think the burden is very high, it will take less evidence (and less convincing from the prosecutor) to convict you. One reason why I am so successful in trial is my ability to have the jurors realize just how high a burden “beyond a reasonable doubt” is.

The following is, in a nutshell, how I go about explaining beyond a reasonable doubt to jurors, and as you can tell, it is a very high burden.

The State of New Jersey must prove your guilt “beyond a reasonable doubt”, which is the highest burden of proof in the justice system. It is not defined, but we do how other burdens of proof have been described.

The lowest burden of proof is called probable cause. Have you ever received a ticket that you disagreed with (as opposed to just not liking the fact you received the ticket)? This level of proof is less then a 50-50 chance that you violated the law, but is all the officer needs to write you a ticket, or to arrest you.

The next highest burden of proof is called a preponderance of the evidence. This amount of proof occurs in civil courtrooms where people are suing each other for money. A preponderance of the evidence is proof amounting to you being 51% correct.

The next highest burden of proof is called clear and convincing evidence. This burden applies to child custody cases. This amount of proof will cause a juror to have a “firm belief” in the matter to be proved. To let the jury understand just how high this burden is, I find two women on the jury panel.

Beyond a Reasonable Doubt is the highest burden of proof. Although not defined, it is a much higher burden the clear and convincing evidence. Why? Your freedom is on the line! A judge must have more then “tons” of evidence that you were intoxicated before they could find you guilty. This is a very simple, yet extremely convincing manner of making a jury understand just how much evidence is required before they can convict a person, thus branding them a criminal for the rest of their life.

Simply put, if a Municipal Court Judge has a single doubt, based on reason, as to a person being intoxicated, they must follow the law and find them not guilty.

What must the State of New Jersey have to convict a driver of DWI?

Prerequisites: Almost all DWI charges arise from arrests which are considered warrantless seizures. Seizures made without an arrest warrant are presumed to be unreasonable. Thus, the State must establish that the officer had probable cause to (a) stop you, and (b) arrest you for drunk driving. Probable cause is a reasonable basis to act, usually involving a suspicion that you violated the law. The State must establish probable cause by a preponderance of the evidence.

Elements: Once these prerequisites are established, then the court can consider the elements of the offense. To convict you of drunk driving, the State must prove beyond a reasonable doubt that you:

• operated or intended to operate
• an operable motor vehicle
• while either under the influence of liquor or with an alcohol concentration of 0.08% by weight of alcohol in your blood or breath.

Breath Tests: Breath testing is by far the most common way of testing for blood alcohol content ["BAC"]. The alcotest is by far the most commonly used machine to test breath in New Jersey.

What does the State of New Jersey have to prove before to verify that the breath tests results are reliable, and admissible?

Before the court can hear what breath test results are, the State must establish certain requirements:

• The machine was working properly.
• The officer who operated the machine was certified by the Attorney General to use it.
• Radio frequency interference did not affect the machine.
• The test was given correctly.

What documents should a person who gave a breath sample see in the discovery before the trial?

• Police copies of the Summons and Complaint
• Drinking-Driving Report, including
  • an observations check-off sheet and
  • a narrative of investigation
• Alcohol Influence Report, including
  • chemical test information
  • full identification of the machine used
  • the type of machine used
  • the machine’s manufacturer
  • the machine’s model number
  • the time of tests were given
  • test results
  • an alcotest operational checklist
• Chun Discovery

Additional Trial Preparation

When to Hire an Expert

If a defect afflicts the alcotest machine or its operation, then the defense may call an expert witness, often a factory trained breathalyzer technician formerly certified by the Attorney General as a Breath Test Coordinator Instructor with the New Jersey State Police.

Consider hiring a medical doctor if you have a health problem that affects breath test results — e.g., diabetes, hypoglycemia, asthma, fever, ulcers, hiatal hernia, and use of certain medications–or causes you to sway, stagger, have bloodshot watery eyes and droopy lids, fumble and move your hands slowly, and show other signs that may be mistaken for intoxication — e.g., diabetes, hypoglycemia, inner ear and eye disorders, neurological deficits, and allergies

New Jersey law requires every driver using the roadways in New Jersey to submit to a chemical breath test when requests. NJ law imposes harsh civil penalties, fines, motor vehicle surcharges, and a long suspension of driving privileges if a driver refuses to take a breath test.

New Jersey courts has an implied consent law, and it requires drivers to take a breath test if they are pulled over on suspicion of DWI. The New Jersey Supreme Court has interpreted the public policy of the implied consent statute to be more protective than punitive. Its primary purpose is not to punish the driver, but to protect the motoring public by removing the offending driver from the highways with reasonable dispatch.

The implementation of New Jersey’s public policy by the courts and the efforts by the police to enforce the implied consent law create numerous challenges for both the prosecutors and defense counsel who must handle refusal cases. Given the numerous potential sentencing enhancements associated with the statute, refusal cases are frequently hotly contested in court. Indeed, the act of refusing to submit to a breath test may be used by the court to infer guilt on the related drunken driving charge.

Yet, over and above these issues, there are other, more basic legal problems that must be confronted in every refusal case. Did the actions of the defendant actually constitute a refusal? Was the defendant legally required to take a breath test? Can a defendant who initially refuses change his or her mind and voluntarily submit to a breath test? Can an acquittal for refusal to submit to a chemical test be appealed by the State? These and many other topics are explored in the sections that follow.

Elements of the Refusal Offense-In General

In general, there are five elements in a refusal that must be proved by the State by a preponderance of the evidence. These include;

1. That the arresting police officer had probable cause to believe that the defendant operated a motor vehicle while under the influence of alcohol;
2. An arrest of the defendant;
3. A refusal by the defendant to submit to a breathalyzer test;
4. That the request for the defendant to take the test was made by a police officer who had reasonable grounds to believe that defendant had been operated a motor vehicle in violation of the DWI laws; and
5. The attempt to administer the breath test was conducted lawfully.

Each of these five elements requires discussion and analysis.

1. Probable cause to Believe that the DWI Driver Operated While Under the Influence.

The police officer must have probable cause to arrest the driver for a DWI charge. The cop can’t just pull over the car, and go “fishing” for DWI drivers. A probable cause determination is based upon the arresting officers’ perceptions, training, experience, and consideration of the totality of the circumstances.

2. Arrest of the Defendant

The refusal charge also requires that the DWI driver be arrested. The arrest of the DWI driver must be supported by probable cause.

3. Refusal to Submit to the Breath Test

Due to their circumstances, perceived legal problems and general state of intoxication, many drunk driving defendants will engage in conduct which can constitute a refusal to submit to a breath test. The law is well settled that anything Substantially short of an unqualified, unequivocal consent to a police officer’s request for a breath test constitutes a refusal to do.

TYPICAL REFUSAL SCENARIOS

A. Silence

When the arresting officer asks the defendant whether he or she will submit to a breath test, the defendant remains silent. This may be due to the defendant’s subjective, good faith belief that he or she has a right to remain silent. However, the defendant’s subjective intent is irrelevant in, determining whether the defendant’s responses or lack of responses constitute a refusal to, take the test. Silence by the defendant is sufficient evidence to constitute a refusal to submit to a breath test. This bright line rule, was adopted by the Appellate Division of Superior Court in State v. Sherwin, 236 N.J. Super. 510 (App. Div. 1989)

B. Insufficient Number of Breath Samples

The refusal statute mandates consent to the taking of samples, of a defendant’s breath. However, how many samples must a defendant provide. Normally, the police will require a minimum of two samples, in order to be assured of accurate, consistent blood alcohol results. In the case State v. White, 253 N.J. Super. 490 (Law. Div. 1991), the court held that a DWI driver must provide at least two samples of their breath and the failure to do so constitutes a refusal.

C. Short Samples

A short sample occurs when the defendant either pretends to blow into the breathalyzer or does not provide a sufficient amount of breath to fill the chamber. These so-called short samples will not result in a valid reading from the breathalyzer and are of no value. Thus, a short sample is no sample at all. For this reason, a short sample can constitute sufficient evidence to satisfy the refusal element.

D. Delay in the Administration of the Breath Test

Defendants will sometimes seek to delay the administration of the breathalyzer test. Frequently, this is done in order to attempt to speak to an attorney or some other person for legal advice prior to taking the breath test. Defendants have no right to delay the administration of a breathalyzer test. Due to the evanescent nature of evidence of alcohol intoxication, it is vital that the police obtain the breath samples from the defendant without undue delay. Indeed, the samples, must be obtained within a reasonable period of time after either operation of a motor vehicle or arrest. Any delay initiated by the defendant may frustrate police efforts to obtain reliable evidence of the defendant’s blood alcohol concentration within a reasonable period of time. For these reasons, a delay by the DWI driver for any reason to take the breath test can constitute sufficient evidence to convict for refusal.

E. Conditional Refusals

A DWI driver may attempt to place “conditions” upon their consent to provide breath samples. In the typical case; the defendant will consent to take a breath test only after being permitted to cause the restroom or make a phone call. A DWI driver can not attach any conditions to taking the breath test.

F. The Confusion Doctrine

The defendants who are requested to submit to breath tests by the police sometimes become confused by the information they are provided by the police. As part of the arrest procedure, the police will often advise a drunken driving suspect of his or her Miranda rights. These include a warning that the defendant has the right to remain silent and to speak to an attorney before any questioning by the police. However, the warnings given to a defendant as to his or her obligation to submit to a breathalyzer test inform the defendant that there is no right to refuse to provide the police with a breath sample or to speak to an attorney before providing a breath sample to the police.

Can the contradictory and, confusing nature of these two advisements to a defendant cause such confusion in the defendant’s mind that he or she can be legally justified in refusing to take a breathalyzer test?

The New Jersey Supreme Court recognized that, as a practical matter, it is difficult to explain to a suspected intoxicated driver under arrest at the police station house the subtle legal distinctions that make it constitutionally permissible to extract a person’s blood or breath but not his or her words. The Supreme Court has even suggested changes to the language used to advise defendants of their obligations under the implied consent law that will eliminate some of the potential for confusion. See, State v. Leavitt, 107 N.J. 534 (1987)

Thus, while confusion is not a recognized defense to a refusal charge, there has been no bright line established by the Supreme Court which would prevent a defendant from raising this issue. A defendant who wishes to assert the “confusion doctrine” as a defense to a refusal charge will bear the burden of persuasion if he or she wishes to establish a confusion claim.

A DWI driver who cannot prove that he or she was confused by the warnings will be found to have refused to submit to a breath test.

G. Physical Incapacity

A DWI driver can argue at court that they were physically incapable of giving a breath test. This type of strategy can work if the DWI driver has breathing problems such as asthma, or if they were shaken up by the accident. Moreover, a driver’s incapacity to take the breath test may be due to a high level of intoxication, illness, or fatigue.

Based on the realities of the DWI case, that a injury to the DWI driver’s mouth, face, chest or lungs that would reasonable prevent the driver from providing a breath sample would probably excuse a refusal.

4. THE POLICE MUST HAVE REASONABLE GROUNDS TO REQUEST A BREATH TEST.

The police officer who requests that the DWI take a breath test must also have “reasonable grounds” to believe that the driver was also drunk. Basically, the police officer must have had probable cause to stop the vehicle to conduct an inquiry for a DWI. Remember, a police officer can’t just pull over a vehicle and request that the driver take a breath test. The vehicle must be stopped for committing some type of motor vehicle violation that would satisfy the probable cause standard. The car must be speeding, weaving, or a tail-light must be out. Random stops of vehicles in most municipal courts do not satisfy the probable cause standard.

5. THE BREATHALYSER TEST WAS ADMINISTERED IN ACCORDANCE WITH THE LAW.

Basically, the police have to read DMV Standard Statement 36 to the DWI driver. If they don’t this may be a great loophole for a DWI driver in an “open minded” court.

Breath test refusal is a separate offense for which the court imposes separate punishments in addition to those for drunk driving.

Elements: The State must prove each of these elements by a preponderance of the evidence (i.e., more likely than not) before the court can convict you of breath test refusal:

1. The arresting officer had probable cause to believe that you were driving or in actual physical control of a motor vehicle on the public highways or quasi-public areas of this state while under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana.
2. You were arrested for drunk driving.
3. The police officer asked you to submit to a breath test.
4. You refused to submit.

Defenses: There are few defenses to breath test refusal. They include confusion about your legal obligation to submit a breath sample (not confusion caused by intoxication) and a physical inability to give sufficient breath samples due to certain medical conditions (e.g., trauma, emphysema, asthma

Refusing to provide samples of your breath is a separate offense (N.J.S.A. 39:4-50.4(a)), which subjects a driver to the penalties as follows:

FIRST OFFENSE
Seven month loss of license, $250 – $500 fine, $1,000 yearly surcharge for three years, and 2 days in the Intoxicated Driver’s Resource Center.

SECOND OFFENSE
Two years loss of license, $250-$500 fine, $1,000 yearly surcharge for three years, and 2 days in the Intoxicated Driver’s Resource Center.

THIRD OFFENSE
There is a 10 year loss of license, $250-$500 fine, $1,000 yearly surcharge for three years, and 2 days in the Intoxicated Driver’s Resource Center.

The penalties are in addition to and consecutive to any penalties imposed for the underlying drunk driving offense. There is also a $100 a year surcharge to be deposited in a drunk driving enforcement. Moreover, a driver is also subject to the requirements set by the Intoxicated Driving Program/Intoxicated Driver Resource Center.

As the population grows in New Jersey more and more citizens use the rivers, bays and oceans each weekend for recreational boating activities. The huge number of sailboats, powered vessels, personal watercraft, and part fishing boats that can be seen at the seashore and on the lakes during each summer is a good indication of the popularity of leisure boating in New Jersey. Of course, with so many people operating so many vessels, the potential for accidents resulting in property damage, personal injury or death is great. This risk of a catastrophe is even more enhanced when the operator of the vessel in under the influence of alcohol or drugs.

The New Jersey State Police and the United States Coast Guard are the two law enforcement units charged with the responsibility of patrolling New Jersey’s waterways for DWI or boating under the influence. The law that governs boating under the influence is N.J.S.A. 12:7-4. This law is in many respects similar to the law banning DWI.

If a person is convicted of boating under the influence, then the person must lose both their boating and driving privileges. The length of suspension of driving privileges tracks the suspension periods set forth in the latest version of N.J.S.A. 39:4-50. Moreover, a refusal to submit to a breath test will also result in a period of suspension of both boating and driving privileges.

The 10-year step-down provision, IDRC requirements and the like remain unchanged. In addition, there are no school zone penalties or surcharges associated with this violation.

In summary, the most important consequence of a boating under the influence charge, is that if a person is convicted, then he or she also must have their driver’s license suspended. The length of the suspension is determined by whether the person was convicted with a BAC of .08% up to .10%, or with a BAC of .10% or higher. Moreover, a boating under the influence conviction will also count as a prior if a person is subsequently charged with additional DWI offenses.

Unfortunately, after many DWI cases the clients become so broke that bankruptcy is their only option. DWI drivers must be warned that a DWI conviction can trigger many collateral consequences that detrimentally affects their lives. There are heavy fines and massive surcharges. Many times a DWI charge will get a person fired from their job. Finally, for some people a DWI conviction may ultimately trigger a divorce or a separation. The cold reality is that a DWI conviction often causes a “chain reaction” that causes a person to file for bankruptcy.

New Jersey is the only state that has surcharges. This is a unique invention by the Garden State that makes our home state uniquely miserable. There are many positive aspects about living in New Jersey. However, motor vehicle surcharges are not one of them. DWI drivers must also must be warned that a DWI conviction will in most cases triple their auto insurance bill. In many instances people just can’t afford to drive again. However, since mass transportation is terrible in New Jersey, most people drive anyway. Many of these drivers are busted once again for the charge of driving while suspended. This violation will cause yet more surcharges. In summary it is not uncommon at all for a repeat DWI driver to have to pay $10,000 to $15,000 worth of surcharges. Please note that if you do not pay your surcharges, then the MVS will charge you interest and penalties. It is a rotten system! The surcharge system is really a form of double punishment. Many Municipal Court judges don’t agree with the surcharge system. However, they can’t change the law, and they have to comply with these laws.

On the bright side, New Jersey does not treat a DWI as a criminal offense. In New Jersey, a DWI charge is still a motor vehicle charge. In most states, a DWI is treated as a criminal offense. Therefore, in many other states if you are busted for a DWI, then you will have a criminal record. New Jersey does not give you a criminal record if you are convicted for DWI. However, the Garden State will fine and surcharge you until you are forced to file for bankruptcy.

Fortunately, bankruptcy can provide some relief to DWI drivers. DWI fines are not dischargeable in any type of bankruptcy proceeding. These fines must be paid. If a person does not pay their DWI fines, then a bench warrant will be issued, and he will be picked and arrested by the police. However, surcharges can be partially discharged in bankruptcy. Surcharges can never be discharged in a chapter 7 case. If a person files a chapter 7, then the automatic stay will stop the MVS from their collection efforts to collect the surcharges. This automatic stay protection will only last for about six months, until the bankruptcy is over. Once the bankruptcy is over, then the MVS will start their collection efforts again. Many people are shocked when they realize that their surcharges are not wiped out in the bankruptcy.

On the bright side, most of the surcharges can be wiped out in a chapter 13 bankruptcy. Chapter 13 is a bankruptcy wherein a person has to pay a portion of their debt over three to five years. In most cases, a DWI driver in a chapter 13 case can pay $50 a month for three years. If the DWI driver makes all of the bankruptcy payments, then they will receive a discharge. Basically, the DWI driver can have most of their surcharges wiped off if they make the plan payments. In summary, if a person has “mega” surcharges, then they must file a chapter 13. A person can’t wipe out surcharges in a chapter 7.

The best way to avoid a DWI investigation and charge is to never drink and drive. However, if it is too late for this advice, and you have been pulled over by a police officer, here is the process the officer will go through to determine whether to arrest you for driving under the influence of alcohol or drugs.

STAGE ONE: Observing The Vehicle In Motion

People operating a vehicle under the influence exhibit symptoms of impairment. The officer will look for slowed reactions, a willingness to take risks, poor coordination and impaired vision. The vehicle might be going extremely fast or extremely slow. There may be a violation of a posted control sign, a failure to use a turn signal, inappropriate use of high beams or any number or other clues that alert the officer to a probability that the driver is influenced by intoxicants.

All a police officer needs to justify pulling a vehicle over is a reasonable belief that the driver was operating in an unreasonable manner, or a reasonable suspicion that an ordinance or other law has been broken. A good faith belief on the officer’s part that the driver may be physically unfit to drive may suffice.

Officers look for 20 specific visual cues that indicate that the driver may be legally intoxicated. If observed independently of any other behavior, each clue has a corresponding probability of impairment established by the National Highway Transportation Safety Administration (NHTSA). They are as follows:

THE OFFICER’S VISUAL CUE CORRESPONDING PROBABILITY OF IMPAIRMENT

• Headlights off 30%
• Accelerating or decelerating rapidly 30%
• Turning abruptly or illegally 35%
• Stopping inappropriately (other than in the lane of travel) 35%
• A slow response to traffic signals 40%
• Driving into or crossing traffic 45%
• Erratic application of the brakes 45%
• Driving with tires on center or lane marker 45%
• Drifting 50%
• Following too closely 50%
• Stopping without cause in the lane of traffic 50%
• Driving slower than 10 miles per hour 50%
• Swerving 55%
• Driving on other than the designated highway 55%
• Weaving 60%
• Almost striking object or vehicle 60%
• Appearing to be drunk: (eye fixation; tightly gripping the steering wheel; gesturing erratically or obscenely; face close to the windshield; drinking in the vehicle; driver’s head protruding from vehicle) 60%
• Straddling center or lane marker 65%
• Turning with wide radius 65%

The probabilities listed above correspond to the officer seeing only one cues. When the officer observes a combination of several cues, the probability rises.

When an officer initiates a traffic stop, there is opportunity for the observation of several more cues of impairment. The stopping sequence that the suspect uses will often be used at trial to prove that the driver was under the influence. Some of the observations typically include:

1. Attempt to flee;
2. A slowed response in pulling over;
3. No response to the officers lights, siren, and commands;
4. Abrupt swerve;
5. Sudden stop;
6. Stopping in an inappropriate place; and
7. Hitting the curb or other object when pulling over.

At trial, prosecutors and police officers almost always use the theory of “divided attention” to explain the process of impairment. The ability to execute multiple tasks simultaneously, to divide attention, is greatly limited by alcohol or drugs in the system. Once the police initiate the stop, there is an increased opportunity for them to look for cues of divided attention and impairment. The intervention of the police officer(s), with flashing lights, sirens and megaphones requires complex motor and emotional processing on the part of the suspect. Many drivers who are under the influence have trouble handling this situation.

Once the stop has been completed, the officer moves into the next stage of the DWI investigation.

STAGE TWO: Personal Contact

Once the stop has been completed, the officer moves into the next stage of the DWI investigation – Personal Contact. In this stage, the officer approaches, observes and interviews the driver while the driver remains in the vehicle. The officer usually will ask the driver general questions to affirm or dispel the suspicion of DWI. During these questions the officer will look for the following evidence of impairment: What law enforcement commonly refers to as “The Odor Of Alcohol” (This phrase is used repeatedly at most DWI trials);

• A flushed face;
• Bloodshot eyes; and
• Slurred or otherwise impeded speech.

The officer pays particular attention to how the driver produces the driver’s license and registration. The officer will note if the driver has trouble retrieving these documents from pocket or glove compartment.

During this time, the officer will also look around the vehicle for any evidence in plain view, such as beverage containers, drugs or drug paraphernalia.

The officer may also administer some preliminary seated sobriety tests to help determine the driver’s impairment. These may be simple verbal exercises. Once this is complete, the officer will decide whether to request that the driver get out of the vehicle. Ordering the driver out of the vehicle does not necessarily commit the officer to arresting the driver, but it more times that not often ends up that way.

The officer will observe how the driver exits the vehicle. Does the driver stumble, trip, use the door for support, fall or grab the officer for support. Once the driver is out of the vehicle, the officer moves into stage three of the DUI investigation.

STAGE THREE: Pre-Arrest Screening

Once the driver is out of the vehicle, the officer moves into stage three of the DWI investigation, the pre-arrest screening phase.

The officer’s first task is to administer field sobriety tests. These tests, many of which have been “standardized” by NHTSA, provide a judge or jury with objective descriptions of the clinical symptoms of impairment, and serve to reinforce the officers physical observations of the suspect during stage two of the investigation.

Officers know that a skilled defense attorney will scrutinize every detail of the tests. On cross examination the defense attorney will try to discredit the test by asserting that:

1. The driver didn’t understand the test adequately to perform it;
2. The officer didn’t first demonstrate the test;
3. The lighting was insufficient;
4. The road was hilly, rocky or otherwise not smooth;
5. Poor weather conditions;
6. That driver had a physical defect which could affect the performance of the test.

The officer will try to do everything possible to minimize the effects of such defense arguments.

FIELD SOBRIETY TESTS

The “standardized” field sobriety tests that NHTSA recommends are as follows:

• Horizontal Gaze Nystagmus
• Walk and Turn
• One Leg Stand
• Other, non-NHTSA standardized field sobriety tests include:
  • Coin Toss Test

Following the field sobriety tests, the officer may ask to give you a preliminary breath test (PBT), which the police use to confirm the chemical basis for the driver’s impairment. A preliminary breath test is for investigatory purposes only and is not admissible in court as evidence.

If the officer is confronted with evidence of drug impairment, it will then be necessary for an officer to seek assistance from an officer with special drug detection training, who will administer a standardized Drug Recognition Examination (DRE) of the suspect.

The arrest occurs at the conclusion of the pre-arrest screening process. If the officer decides to arrest the suspect, he must have probable cause that the driver is under the influence of alcohol or drugs.

Once you are under arrest for DWI. the police will then invoke the “implied consent” statute and obtain a chemical test from you with a view towards establishing your Blood Alcohol Concentration (BAC).

When you are on the road and under investigation for DWI by a cop, you are on their turf. They have the power. However, when you go into court with a DWI defense attorney, and your attorney cross-examines the cop, the cop is out of his/her element. If the cop has made mistakes, a good DWI defense lawyer will make sure that the judge knows about them.

N.J.S.A. 39:6A-4.5(b) provides:

Any person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of R.S.39:4-50, section 2 of P.L.1981, c. 512 (C.39:4-50.4a), or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or non-economic loss sustained as a result of the accident.

If a DWI driver pleads guilty, or if he is found guilty of DWI or Refusal, then he or she will likely be barred from filing for any claim for injuries or damage in any lawsuit. This bar even applies if the DWI driver was stopped at a red light and then rear-ended by the other driver. The DWI driver would however, be entitled to PIP or medical benefits for any injuries suffered in the accident.  The DWI driver may also be barred under his or her insurance policy from receiving benefits such as collision and comprehensive coverage.