We are frequently asked about the constitutionality (legality) of roadblocks which result in DWI charges in New Jersey. The constitutionality of police roadblocks was addressed in the 1979 United States Supreme Court case of Delaware v. Prouse, 440 U.S. 648 (1979). In Prouse, the Supreme Court held that it was unconstitutional to stop and detain a driver absent articulable suspicion that a motorist is unlicensed, that the automobile is unregistered, or the vehicle or an occupant is otherwise subject to seizure for violation of law (e.g. motor vehicle violation, warrant, etc.). The issue was, however, revisited under New Jersey’s Constitution in State v. Kirk, 202 N.J. Super 28 (App.Div.1985). In Kirk, the court held that temporary road blocks set up by New Jersey police were unconstitutional absent safeguards such as identified procedures for ensuring supervisory control of checkpoints and warnings to motorists of the anticipated roadblock. The case of State v. Moskal 246 N.J. Super 12 (1991) displays how the required procedures must operate if the roadblock is to be valid. In Moskal, the court concluded that a sobriety checkpoint (i.e. a roadblock) is valid provided the location of the checkpoint is appropriate based on historical arrest rates at the location, public safety and awareness would be fostered by the checkpoint, there is participation in command and supervision, and notice of the checkpoint is published to provide motorist with notice.

Basically, therefore, roadblocks are constitutional and valid in New Jersey if these procedural safeguards are met by law enforcement officers.

The penalties for a third offense of Driving While Intoxicated under New Jersey’s DWI Statute, N.J.S.A. 39:4-50, are substantial and include 180 days of jail. While 90 days of the term of incarceration may be served in an inpatient rehabilitation facility with the approval of the sentencing Court, 90 days must be served in prison and most County Sheriff’s Offices have a blanket prohibition against house arrest, weekends, or anything other than flat time of incarceration in a County Jail. Given the significance of the sentence, what then can be done to defend a third DWI offense where an individual is indefensibly guilty?

The most common defense strategy for avoiding incarceration is a collateral attack on the first two DWI convictions. Existing case law supports the proposition that a prior DWI conviction cannot be utilized for purposes of incarceration absent a full and knowing guilty plea in all prior proceedings. This idea is frequently utilized to avoid use of a prior conviction which was based on a plea taken from an unrepresented individual; the underlying rationale is that the defendant was not afforded the full benefit and knowledge of his potential defenses at the time of the plea and that it would therefore be fundamentally unfair to send him to jail based on such a prior plea. Similarly, a conviction based on a plea which was taken without adequate instruction to a defendant of his rights and a clear and unequivocal factual basis for the prior guilty plea should not be counted for purposes of incarceration as a third offender. Where one of these principals is applied by a Court, the typical ruling is that the defendant shall be subject to all other penalties of a Third Offense other than the incarceration.

In defending a Third Offense for DWI where an individual has no real defense substantively to the charge, the proper course of action is therefore to conduct a thorough investigation into the facts and circumstances surrounding the prior convictions. While the law is certainly becoming more stringent with respect to the evidence necessary to support invocation of Laurick; however, it is not unheard of for a municipal court to accept the representations of a defendant under oath as the factual basis for invocation of this case law. The more common scenario is, however, for counsel to request and obtain the transcripts from the prior proceedings to corroborate that the defendant was unrepresented and/or that the plea was lacking in the prior proceedings. Prior transcripts are sometimes unavailable as prior convictions are often very old and this can provide a fertile opportunity for a defense in and of itself for an individual (i.e. how can the state refute what the defendant is claiming regarding the prior plea where the transcripts are unavailable). It is important to remember that the key consideration here is the ability to create an issue(s) which will allow for a downward departure from the standard sentence as prosecutors in New Jersey are absolutely forbidden from plea bargaining DWI cases; in other words, there must be some bona fide legal basis or argument to support a departure from the standard penalties. A thorough investigation into the prior convictions can yield such an issue in a Third DWI case. 

The question which invariably follows when the aforesaid law is explained to an individual facing a Third DWI charge is: What are my chances of availing myself of one of these defenses?   I have found that the best way to respond to this question is to give the illustration of a real life case I handled for an individual we will refer to as DV. DV was charged with a third DWI and the question arose as to whether it should actually be treated as a Third or Second Offense based on the fact his Second Offense was treated as a First Offense at the time of the related plea. DV’s second conviction came over ten (10) years after the first offense and N.J.S.A. 39:4-50 provides that a prior conviction shall not be counted when a 10 year gap between convictions has accrued. DV was therefore able to have his second offense treated as a first rather than a second; so how then would the Third be treated? Unfortunately, DV hired an attorney who did not have a good grasp of the law nor the desire to undertake the effort to fully defend the client and, as a result, the man entered a plea to a third DWI and was committed to jail for 180 days since New Jersey’s Supreme Court held in State v. Burroughs 793 A.2d 137 (N.J. Super A.D. 2002)

that the 10 year drop off was only available one time, holding that a third offense was actually a third offense irrespective of the time gap between convictions. This has given rise to the coined phrase that “a third is a third”. The problem with the plea to the third offense was the fact that the first plea was improperly taken by the Court and a transcript of the proceeding demonstrated that the law was violated in terms of failure to enter a knowing and intelligent plea. 

Our initial effort for DV was to file an immediate application for post-conviction relief with the original trial judge but this was unsuccessful as the Court simply did not understand the importance of the fact that we were not attempting to invalidate the prior conviction based on a 10 year gap but rather based on an improper plea having been taken at the time of the first conviction. On Appeal to the Superior Court, our efforts proved successful and the Municipal Court Judge was reversed. While our client had served approximately 45 days in jail as of the date of the ruling, as we did not become involved in the case until he was already in jail, he was able to avoid over four months of incarceration simply by our undertaking the effort which DV deserved. The client has since turned his life around, stopped drinking, and can only be viewed as extremely fortunate that no one was ever injured by his conduct.

I often provide the story of DV to individuals charged with a third offense as it bespeaks of the fact that all hope may not be lost for an individual interested in turning his life around short of going to jail for 180 days.   Competent counsel has several avenues to avoid the prior convictions. An individual charged with his third dwi should certainly take advantage of these opportunities as a flat term of incarceration is going to have an overwhelming impact on his or her life.

Police are generally required to conduct Field Sobriety Tests before issuing a summons for driving while intoxicated or driving under the influence. These physical and psychological tests are intended to provide the police with information necessary to determine whether an individual is under the influence of alcohol or drugs. The tests are also necessary because a police officer must possess probable cause to make an arrest and unless he has portable breath test equipment in his vehicle, field sobriety tests (also referred to as psycho-physical testing) are ordinarily the only basis for establishing probable cause for an arrest. Additionally, the tests provide evidence which the police can rely upon in attempting to prove a New Jersey DWI, DUI or Refusal case where blood alcohol concentration cannot be established through blood or breath tests.

There are many issues which may be raised with respect to administration and interpretation of field sobriety tests. Indeed, many times police officers fail to administer the tests properly thereby destroying the value of the tests. In other instances, the test results are misinterpreted or exaggerated, and this can also be brought out during the course of a case. If the weight of the field sobriety tests can be eliminated or significantly reduced, then the prosecutor may be unable to satisfy his burden of establishing probable cause for the drunk driving arrest and any DWI, DUI or Refusal charge issued.

The types of field sobriety tests administered in a given case vary, but the pool of tests which are utilized by police officers typically involves the following:

1. The Horizontal Gaze Nystagmus Test: this is a test wherein police attempt to determine whether probable cause exists to make an arrest based on how smoothly an individual’s eyes are tracking. For a more detailed discussion concerning the limited use of this test, readers are referred to New Jersey’s Appellate Division decision in State v. Doriguzzi, 334 N.J.Super. 530 (App.Div.2000).

2. Head Tilt Test

3. Finger to Nose Test

3. The One Leg Balance Test

4. Heal to Toe Test

5. Reciting the ABCs

6. Counting

The results of the field sobriety tests, as well as other circumstantial evidence, is recorded in the Police Report and Drinking and Driving Report contained in the arrest records (i.e. the discovery).

The Horizontal Gaze Nystagmus (HGN) Test is a fairly new field sobriety test in New Jersey drinking and driving cases. This is one of the field sobriety tests law enforcement officers use when conducting DWI traffic stops. If the breathalyzer or blood test results are not conclusive, the State will attempt to use these field sobriety results to prove intoxication. In State v. Maida 332 NJ Super 564 (Law Div. 2000), the court held that HGN testing is generally accepted in the relevant scientific community. However, absent a similar determination by an Appellate Court or the New Jersey Supreme Court, the trial courts in this State are not at liberty to admit evidence of newly-devised scientific technology unless the general acceptance thereof is demonstrated by expert testimony, authoritative scientific and legal writings or judicial opinions. This issue went to the Appellate Division in the case of State v. Doriguzzi 334 NJ Super 530 (2000) where the Appellate Division declined to take judicial notice of the HGN tests. The court held that HGN testing is scientific in nature and must be supported by expert testimony.

There is a charge in New Jersey for allowing another to operate a vehicle when that person is intoxicated. The allowing violation is set forth under N.J.S.A. 39:4-50(a) which provides:

(a) Except as provided in subsection (g) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant’s blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant’s blood shall be subject (to the following penalties)…

This statute appears to be a strict liability offense which means it does not matter whether the person knew that the driver was intoxicated. This is the mens rea element of the statute: the state of mind of the person allowing the intoxicated individual to drive. However, this is not how the statute has been interpreted by the Appellate Division in New Jersey. There is a requirement for proof of knowledge. In State v. Skillman, 226 N.J. Super. 193 (App. Div. 1988), the court held “before a person may be convicted of permitting another person to operate a motor vehicle under the influence of intoxicating liquor or drugs, or in violation of the statutory standard for blood alcohol level, the State must produce evidence from which the trier of fact may reasonably infer, beyond a reasonable doubt, that such owner or custodian knew or reasonably should have known, of the permittee’s impaired condition to drive.”

This is the current standard for allowing intoxicated operation in New Jersey.

Driving while intoxicated (DWI) in New Jersey is a strict liability offense requiring no culpable mental state. Driving a vehicle on the roads in New Jersey with a blood alcohol content (BAC) greater than .08% is a per se violation of the drinking and driving statute, N.J.S.A. 39:4-50. The State need not demonstrate a defendant’s culpable state of mind to prove a violation for drunk driving. This was decided by the New Jersey Supreme Court in State v. Hammond, 118 N.J. 306 (1990).

The elements of a DWI offense in New Jersey are basic. The drunk driving statute “prescribes an offense that is demonstrated solely by a reliable breathalyzer test administered within a reasonable period of time after the defendant is stopped for drunk driving which test results in the proscribed blood alcohol level.” State v. Tischio, 107 N.J. 504 (1987). Therefore, in order to provide a defense to DWI in New Jersey, you must challenge the stop (by showing an illegal stop for lack of probable cause), the breathalyzer results (by showing the machine did not have a valid certificate or that the machine was not functioning properly), the field sobriety tests, etc.

We are frequently contacted by out of state drivers who have been charged with DWI, DUI, or Refusal in New Jersey. These individuals do not have a New Jersey Driver’s License: They have a motor vehicle license from another state and they were stopped on the roadways in New Jersey and given a summons for drinking and driving. These drivers are bound by New Jersey’s drinking and driving laws and they are subject to the penalties associated with that conviction. However, New Jersey has no ability to affect the driving privileges of these individuals in other states because their drivers license was not issued by the State of New Jersey. Basically, therefore, New Jersey can suspend their driving privileges in New Jersey and notify the State in which the drivers license is issued of the DWI conviction. The Division of Motor Vehicles in the home State will then decide what the penalties will be in terms of suspending the offender’s drivers license. The New Jersey courts do not have jurisdiction to decide what, if anything, will happen to the drivers license of the offender in the driver’s home state.

In my previous post I discussed the “under the influence of alcohol” language of the New Jersey drinking and driving statute N.J.S.A. 39:4-50. There is also important case law regarding driving while intoxicated (DWI) prosecutions for driving while under the influence of drugs. The New Jersey Supreme Court considered this issue in State v. Bealor, 187 N.J. 574 (2006). “Expert testimony remains the preferred method of proof of marijuana intoxication. We arrive at that conclusion in the knowledge that it is not too difficult a burden for the State to offer an expert opinion as to marijuana intoxication. Prosecutors in municipal courts throughout the State routinely qualify local and state police officers to testify as experts on the subject of marijuana intoxication. Expert testimony only requires that a witness be qualified ‘by knowledge, skill, experience, training, or education.’” Id. An operator of a motor vehicle is under the influence of a narcotic drug within the meaning of N.J.S.A. 39:4-50(a) if the drug produced a narcotic effect so altering his or her “normal physical coordination and mental faculties as to render such person a danger to himself, as well as to other persons on the highway.” State v. Dicarlo, 67 N.J. 321 (1975). A lay witness if sufficiently experienced and trained may testify generally as to the observable reaction of drug users and of the technique of the use. State v. Jackson, 124 N.J. Super 1.

“Operation” is a crucial element that the State must prove beyond a reasonable doubt when prosecuting an individual for driving while intoxicated (DWI). There is some important case law in New Jersey regarding what constitutes “operation” sufficient to satisfy the State’s burden of proof. First, an operator of a motor vehicle is defined as a person who is in actual physical control of the vehicle. One can be an operator without driving. State v. Wright, 107 N.J. 488. Furthermore, when one, in an intoxicated state, places himself behind the wheel of a motor vehicle and not only intends to operate it in a public place, but actually attempts to do so and there is a possibility of motion, he has operated the vehicle within the meaning of N.J.S.A. 39:4-50(a). State v. Mulcahy, 107 N.J. 467 (1987). Moreover, in the landmark case of State v. Daly, 64 N.J. 122 (1973), a person left a tavern at closing time, entered his car in the tavern’s parking lot and started the engine to remain warm while “sleeping off” his intoxicated state. The court found that he did not have the requisite intent to operate his vehicle. In addition to starting the engine, evidence of intent to drive or move the vehicle at the time must appear. Finally, in State v. Sweeney, 40 N.J. 359 (1963), the court held that a person operates a motor vehicle under the influence of an intoxicating liquor, within the meaning of NJSA 39:4-50, when, in that condition, he or she “enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains in the driver’s seat behind the steering wheel, with the intent to move the vehicle.”

As you can see, intent is a key element that the State must prove. We had a client come in recently who is charged with DWI in New Jersey. He was sleeping in his vehicle with the car running and with the driver’s seat reclined when he was approached by a police officer and charged with drinking and driving. With the case law discussed above it appears we have a very solid defense against the DWI charge because the State will be unable to prove operation since the driver was sleeping in the vehicle and the seat was reclined, making it almost impossible that he intended to operate the vehicle. The State has to prove this element beyond a reasonable doubt and it appears in that case that they will be unable to do so.