Tuesday, February 10th, 2009
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.
