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.

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.

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.

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.

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.

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.

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.

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?

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.

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.