Here are a couple important cases regarding DWI drug charges in New Jersey:

State v. Bealor, 187 N.J. 574 (2006)

The NJ Supreme Court held that competent lay observations of the fact of intoxication, coupled with additional independent proofs tending to demonstrate defendant’s consumption of narcotic, hallucinogenic or habit-producing drugs as of the time of the defendant’s arrest, constitute sufficient proofs to establish DWI beyond a reasonable doubt.

State v. DiCarlo, 67 N.J. 321 (1975)

The NJ Supreme Court held that the definition of narcotic drug in the Controlled Dangerous Substance Act is not of controlling weight in interpreting the same phrase appearing in N.J.S.A. 39:4-50.

Here are some important cases governing multiple DWI offenses and categorization of offenders in New Jersey:

State v. Burroughs, 349 N.J. Super 225(2002)

The court held that the defendant was subject to third offender treatment, although more than ten years elapsed between his first and second drunk driving offenses, where less than ten years elapsed between his second and third drunk driving offenses.

State v. DiSomma, 262 N.J. Super 375(1993)

The court held that a conviction for refusal to take a breathalyzer test could not serve as a basis for imposing second offender status when sentencing defendant for later conviction for driving while intoxicated.

State v, Tekel, 281 N.J. Super 502(1995)

The court held that defendant can be sentenced as a second offender after refusing to take a breathalyzer test when they have a previous DWI conviction.

Here are some important cases regarding roadblocks in DWI cases in New Jersey:

State v. Kirk, 202 N.J. Super 28(1985)

The court held that temporary road block set up by exercise of absolute, unbridled discretion of officers in field is violative of State Constitutional provision against unreasonable seizure; however, if certain procedures set forth, ensuring supervisory control of checkpoints and warnings to motorists, are carefully followed, any constitutional objections will be overcome.

State v. Moskal, 246 N.J. Super 12(1991)

The court held that the stop of a motorist at a sobriety checkpoint did not violate his Fourth Amendment rights; site of checkpoint has been determined by DWI arrest rate, past accident rate, public safety and awareness that would arise from the checkpoint, requisite participation of command or supervisory authority had been obtained in overseeing operation, and all necessary advance publicity and warnings of checkpoint had been given.

A parent or guardian who allows an underage person to gamble in Atlantic City, New Jersey is guilty of a disorderly persons offense. The statute which governs this charge is N.J.S. 5:12-119(c) which provides:

N.J. Stat. § 5:12-119 (2010) Gaming by certain persons prohibited; penalties; defenses

c. A person who knowingly allows or permits another person who is under his or her lawful care, custody, or control and who is under the age at which a person is authorized to purchase and consume alcoholic beverages to wager or attempt to wager in a licensed casino or simulcasting facility in violation of subsection a. of this section is guilty of a disorderly persons offense.

As the above statute details, for the State to prove this charge beyond a reasonable doubt they must show (1) that the defendant knew that the underage individual was gambling; (2) that the underage individual is under the defendant’s legal care (meaning a parent or guardian); (3) that the underage individual was gambling on a casino floor; (4) that the underage individual is in fact under the legal age to gamble in New Jersey which is twenty-one (21).

As a result, even if a parent allows an underage individual to push the button on a slot machine on a casino floor while in the company of the parent, this is a violation of underage gambling laws by the minor and a violation of the above statute for allowing an underage person to gamble. These charges can have serious consequences and lead to a permanent criminal charge on your record. Contact an experienced criminal defense lawyer if you or a loved one has been charged with underage gambling or allowing an underage person to gamble.

My office handled many cases this summer in Jersey Shore towns including Manasquan, Belmar, and Seaside Heights with clients charged with underage possession of alcohol, underage driving while intoxicated (DWI), and possession of a fake ID.

One typical example is underage individuals who were charged with possession of a Fake ID in Belmar Municipal Court after attempting to get into a bar or a liquor store with false identification. This is a criminal offense in New Jersey and leads to a permanent criminal charge on your record if convicted. However, our experienced criminal defense lawyers were extremely successful in negotiating a downgrade of this criminal offense to a violation of a municipal ordinance. This results in a fine ($1,250.00 in Belmar Municipal Court) and no criminal charge on your record. The prosecutor will consider your background (any prior criminal history), your age, the circumstances of your arrest (if you were cooperative with law enforcement), and the evidence that the State possesses to prove the charges against you.

If you plead guilty to possession of a fake ID, this is a disorderly persons offense and includes up to six (6) months in the county jail. Moreover, this will lead to a criminal charge on your record which will show up on background checks for future educational and employment opportunities. Obviously for a young person, this can have a significant negative impact on your future. However, you can file for an expungement of this criminal charge five (5) years from the date of your conviction. If you plead guilty to a downgraded violation of a municipal ordinance, you can file for an expungement two (2) years after the violation. If the charges are dismissed entirely, you can file for an expungement immediately to have the arrest removed from your record.

Providing alcohol to minors is a criminal offense in New Jersey under N.J.S. 2C:33-17. This is known as a disorderly persons offense which includes up to six (6) months in the county jail, up to a $1,000.00 fine, and a permanent criminal charge on your record if convicted. This conviction can be expunged off your record after five (5) years in certain circumstances depending on any other criminal history. These charges will be handled in the Municipal Court in the municipality in which the arrest was made. For example, if you are arrested for providing alcohol to minors in Sea Bright, New Jersey, this matter will be handled in the Sea Bright Municipal Court. The statute governing charges for providing alcohol to minors states in pertinent part:

§ 2C:33-17. Availability of alcoholic beverages to underaged, offenses

a. Anyone who purposely or knowingly offers or serves or makes available an alcoholic beverage to a person under the legal age for consuming alcoholic beverages or entices or encourages that person to drink an alcoholic beverage is a disorderly person.

This subsection shall not apply to a parent or guardian of the person under legal age for consuming alcoholic beverages if the parent or guardian is of the legal age to consume alcoholic beverages or to a religious observance, ceremony or rite. This subsection shall also not apply to any person in his home who is of the legal age to consume alcoholic beverages who offers or serves or makes available an alcoholic beverage to a person under the legal age for consuming alcoholic beverages or entices that person to drink an alcoholic beverage in the presence of and with the permission of the parent or guardian of the person under the legal age for consuming alcoholic beverages if the parent or guardian is of the legal age to consume alcoholic beverages.

b. A person who makes real property owned, leased or managed by him available to, or leaves that property in the care of, another person with the purpose that alcoholic beverages will be made available for consumption by, or will be consumed by, persons who are under the legal age for consuming alcoholic beverages is guilty of a disorderly persons offense.

Our law firm recently represented a client who was charged with his third driving while intoxicated (DWI) charge in Elizabeth, New Jersey. He was also charged with driving with a suspended license in violation of N.J.S.A. 39:3-40. A third drunk driving conviction in New Jersey results in a ten (10) year license suspension and six (6) months in the county jail (ninety (90) days of which can be served at an approved in-patient rehabilitation facility). Moreover, the client had multiple prior driving while suspended charges on his record and was facing an additional 1-2 year license suspension and an additional 20-100 days in the county jail based on the driving while suspended charge.

Several reputable union county criminal lawyers declined to take the defendant’s case because “there was nothing they could do” to help him and keep the defendant out of jail. As you can see, the defendant was exposed to more than eleven (11) years in driver’s license suspensions and mandatory seven (7) months to (1) year in jail based on these charges. Our firm was hired to represent the defendant against these charges in Elizabeth Municipal Court. Two members of my criminal trial team, Colin Bonus and Travis Tormey, appeared several times in attacking the State’s case from several angles. The breath test readings were suppressed based on a Motion to Suppress evidence as there was a 20-minute issue as to the observation of the defendant prior to submitting his breath sample on the Alcotest machine. Moroever, the foundational documents provided by the State associated with the breath testing device were flawed and were not in accordance with State v. Chun. As a result, and because the State could not prove the drunk driving charge on the physical observations, as no field sobriety testing had been done, the driving while intoxicated (DWI) charge was dismissed. Further, my firm worked out a downgrade of the other charges so that the client did not lose his license at all and avoided any jail time. As you can imagine, this was a tremendous result for the client and the firm.

This case is an example of the type of defenses which are available in drunk driving cases in New Jersey if the right attorneys are involved. Our criminal defense trial team will examine the facts of your case, review the discovery package provided by the State, consult with experts and obtain an expert report if necessary, and take the case to trial if the circumstances warrant. Please contact any of my offices anytime for a free initial consultation at (732)450-8300.

The criminal defense attorneys at my firm frequently appear in Clark Municipal Court in Clark, New Jersey. With offices conveniently located in Cranford and Morristown, our firm represents clients throughout New Jersey, including Union County and Morris County. The Clark Municipal Court is located at 315 Westfield Avenue, Clark, NJ 07066-1797. The main telephone number for the court is (732)381-5395. The fax number for the court is (732)381-9630. The court personnel is as follows:

• Judge: Antonio Inacio, J.M.C.
• Prosecutor: Jon-Henry Barr, esq.
• Court Administrator: Lorraine Disko
• Clark Police Department: (732)388-3434

The court schedule is the second and fourth Wednesdays of the month, 9 a.m.

One traffic offense our attorneys often handle is driving with a suspended license in violation of N.J.S.A. 39:3-40. The statute provides:

§ 39:3-40. Penalties for driving while license suspended, etc

No person to whom a driver’s license has been refused or whose driver’s license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a driver’s license, shall personally operate a motor vehicle during the period of refusal, suspension, revocation, or prohibition.

No person whose motor vehicle registration has been revoked shall operate or permit the operation of such motor vehicle during the period of such revocation.

Except as provided in subsections i. and j. of this section, a person violating this section shall be subject to the following penalties:

a. Upon conviction for a first offense, a fine of $ 500.00 and, if that offense involves the operation of a motor vehicle during a period when the violator’s driver’s license is suspended for a violation of NJSA 39:4-50 or section 2 of P.L.1981, c.512 (NJSA 39:4-50.4a), revocation of the violator’s motor vehicle registration privilege in accordance with the provisions of sections 2 through 6 of P.L.1995, c.286;

b. Upon conviction for a second offense, a fine of $ 750.00, imprisonment in the county jail for at least one but not more than five days and, if the second offense involves the operation of a motor vehicle during a period when the violator’s driver’s license is suspended and that second offense occurs within five years of a conviction for that same offense, revocation of the violator’s motor vehicle registration privilege in accordance with the provisions of sections 2 through 6 of P.L.1995, c.286;

c. Upon conviction for a third offense or subsequent offense, a fine of $ 1,000.00 and imprisonment in the county jail for 10 days. If the third or a subsequent offense involves the operation of a motor vehicle during a period when the violator’s driver’s license is suspended and the third or subsequent offense occurs within five years of a conviction for the same offense, revocation of the violator’s motor vehicle registration privilege in accordance with the provisions of sections 2 through 6 of P.L.1995, c.286;

d. Upon conviction, the court shall impose or extend a period of suspension not to exceed six months;

e. Upon conviction, the court shall impose a period of imprisonment for not less than 45 days or more than 180 days, if while operating a vehicle in violation of this section a person is involved in an accident resulting in bodily injury to another person;

Here is some important precedent regarding proof of intoxication for DWI cases in New Jersey:

State v. Johnson, 42 N.J. 146 (1964)

The court held that proof of intoxication may be established either through breath test or other toxicology tests, or by other evidence such as the driver’s own admissions or his performance of psycho-physical tests.

Romano v. Kimmelman, 96 N.J. 66 (1984)

The NJ Supreme Court established the reliability and admissibility of breathalyzer test results. The court held that (1) manufacturers’ breathalyzer models “900” and “900A” are scientifically reliable for purpose of determining content of blood alcohol, with narrow qualification as to admissibility of test results relating to possible effects of radio frequency interference; (2) results of administration of model “900” can be received in evidence without further proof establishing any additional conditions for admissibility relating to effects of radio frequency interference, provided that hand-held transmitters are banned from area in close proximity to breathalyzer instrument; (3) model “900A” results may be admitted in evidence and form basis of driving under influence conviction either if breathalyzer result consists of two tests or readings within tolerance of 0.10 percent of each other, breathalyzer instrument has been found not to be radio frequency interference-sensitive, or if sensitive, it is shown that in administration of instrument, instrument was protected from transmitters and radio frequency; and (4) new trial on newly discovered evidence may be brought only when conviction based upon such breathalyzer results could possibly have been affected by radio frequency interference.

State v. Maida, 332 N.J. Super 564 (2000)

The court held (1) that the coordinator’s certificate was sufficient to carry the burden of proof as to accuracy of breath test machine and (2) the Horizontal Gaze Nystagmus (HGN) test was sufficiently reliable to be admitted as scientific evidence of intoxication in a criminal trial.                                       

State v. Cryan, 363 N.J. Super 442 (2003)

The court held under the influence means a condition which so affects the judgment or control of the motor vehicle operator as to make it improper for him to drive on the highway. In this case bloodshot eyes, a strong odor of alcohol on his breath, and hostile and erratic behavior were sufficient to establish driving while intoxicated.

State v. Slinger, 281 N.J. Super 538 (1995)

The court held that proof of intoxication can be shown independent of the breathalyzer results where, as here, defendant’s erratic driving, his physical appearance, demeanor, and speech, as well as the smell of alcohol on his breath were sufficient reliable indicia to establish driving while intoxicated.

Here are some important cases regarding proper DWI stops in New Jersey:

State v. Carpentieri, 82 N.J. 546 (1980)

The police must have an articulable and reasonable suspicion that a violation of the traffic laws has occurred in order to effectuate a stop for DWI. Basically, the New Jersey Supreme Court in this case applied the United States Supreme Court decision holding random traffic stops invalid but applied this rule only to those stops that occurred after the Supreme Court decision.

State v. Pegeese, 351 N.J.Super. 25 (App.Div.2002)

The police may not detain occupant for consent search absence violation or criminal conduct once evidence of proper licensing, registration and the like is supplied.

State v. Puzio, 379 N.J.Super. 378 (App.Div.2005)

A stop is invalid where it is based on a police officer’s mistaken understanding of the law. The court held that as an issue of first impression, officer’s belief that defendant was operating a vehicle in violation of statute requiring display of business and address on a commercial vehicle was not objectively reasonable, and thus officer was not justified in conducting investigatory stop of vehicle.

State v. Pitcher, 379 N.J.Super. 308 (App.Div.2005)

A stop based on an officer’s mistaken understanding of a fact, e.g., that the driver had a suspended license, will not be invalidated provided the officer’s actions were supported by a “reasonable” belief that the related facts were accurate. The court held that officer’s traffic stop, conducted in reliance on erroneous information in the DMV database that showed that the defendant had a suspended license, was reasonable.