There is a right to an independent blood test under New Jersey drinking and driving laws. A defendant may successfully challenge the introduction of a breathalyzer examination when he or she is “informed of his right to have an independent examination and attempts to take advantage of that right, but is not afforded a meaningful opportunity to have the independent test conducted. That is, it must be shown that the absence of established police procedures has interfered with or thwarted defendant’s attempt to exercise the right to an independent examination.” State v. Jalkiewicz, 303 N.J. Super 430 (1997). In this case, the arresting officer’s summoning of the cab immediately upon completing the breathalyzer tests on defendant, taken in conjunction with his prior advice to defendant concerning the right to an independent test, was all that was necessary to further defendant’s exercise of his right. Rather than seek an independent blood test, the defendant used the cab to take himself home. Thus, there was no thwarting of the defendant’s right to have an independent test. It is only where the absence of police procedures interfere with the defendant’s attempt to exercise his statutory right that relief must be given. Id.

However, where the evidence demonstrates that the police thwarted defendant’s opportunity to arrange a meaningful independent blood test, the appropriate sanction is a suppression of the blood test results. However, a defendant may still be found guilty based upon observation evidence that he operated his motor vehicle while under the influence of alcohol. State v. Broadley, 281 N.J. Super 230 (1992).

There are several important issues that can be raised that are unrelated to the level of intoxication of the defendant. The first involves the legal justification for the motor vehicle stop. Both the Fourth Amendment to the US Constitution and Article 1, paragraph 7 of the New Jersey Constitution ban one type of search and seizure, one that is unreasonable. Searches and seizures that are undertaken without the authority of a judicially issued warrant are presumed to be invalid and thus unreasonable under both the State and federal constitutions. Therefore, in every drunk driving case it is the State’s responsibility to demonstrate that the police seizure of the defendant’s motor vehicle by way of a motor vehicle stop and any subsequent search of the defendant or the vehicle were reasonable. The physical evidence recovered from the search of a motor vehicle, such as drugs or beer cans, may constitute powerful direct or circumstantial evidence of guilt. The justification for the motor vehicle stop must be based on reasonable suspicion. If it is not, it may result in the suppression of all the prosecution’s evidence. After the determination that the stop is supported by reasonable suspicion, the arrest for drinking and driving must be based on probable cause. This is a warrantless arrest by a police officer which is allowed under the New Jersey drinking and driving statute, N.J.S.A. 39:4-50. In essence, the probable cause determination is based on the totality of the circumstances presented to the officer and need only be objectively reasonable to be legally sustainable. When the arrest of a suspect for drinking and driving is found to be unreasonable because it was not based on probable cause, all evidence stemming from the arrest, including physical evidence seized incident to the arrest and the results of breath or blood tests may be subject to suppression. This is all based on the Fourth amendment protections against unreasonable search and seizure.

As I said in my previous article, New Jersey has yet to drop the inadvertence requirement from the plain view analysis as was done by the United States Supreme Court in Horton v. California, 496 U.S. 128 (1990). This issue was first presented to the Appellate Division in State v. Damplias, 282 N.J. Super 471 (1995). However, the court declined to rule on whether the inadvertence requirement (the second prong of the test) is still an essential element under Article I, Paragraph 7 of the New Jersey Constitution. The court simply noted that the test for inadvertence has two prongs: 1) Did the police know in advance where the evidence was located? 2) Did the police intend beforehand to seize the evidence? If the answer to both questions is yes, then the discovery of the evidence is not inadvertent and the plain view exception does not apply. However, if the answer to the first prong is yes and the answer to the second prong is no, the the inadvertence requirement is satisfied. Seven years later, the New Jersey Supreme Court had an opportunity to clarify the issue but declined to do so. In State v. Johnson, 171 N.J. 192 (2002), the Court avoided the question and declined to rule on whether the inadvertence prong is still a requirement under the State Constitution. The Court simply held that, to the extent that the inadvertence requirement still exists in the wake of the Horton decision, it was satisfied in the Johnson case. Accordingly, it appears that the inadvertence prong is still part of the analysis in New Jersey with regard to the plain view exception to the warrant requirement.  

There were arguments at the New Jersey Supreme Court this past Monday over the state’s new drunk driving test, the Alcotest. The state Supreme Court judges must put their stamp of approval on the machine for it to go live statewide. For them to do so, they must determine that it is scientifically reliable enough to be used in DWI prosecutions in New Jersey. The Alcotest 7110, which would replace the Breathalyzer which has been in use since the 1950s, has been used in 17 counties since early 2006. The New Jersey Supreme Court has stayed sentencing pending its review of the machine’s reliability. As many as 7,800 defendants in DWI cases based on the Alcotest are awaiting the Court’s ruling on the machine’s reliability. In November, Special Master Michael Patrick King concluded, based on a voluminous fact-finding record, that the Alcotest is scientifically reliable for evidentiary purposes, subject to safeguards meant to compensate for software flaws. It was his second report recommending implementation, and Monday was the Court’s second hearing on whether to adopt King’s recommendation.

There are experts that contend that errors in Alcotest readings are still possible due to software and mechanical issues. The Alcotest performs two tests on each breath sample, using electrochemical and infrared technology, but the electrochemical test tends to become less accurate over time due to fuel-cell depletion. The device is programmed to compensate by using the infrared value to compute the electrochemical result. King recommended that the device be calibrated for accuracy and its fuel cell replaced, if necessary, every six months–twice as often as the annual tune-up he originally suggested.

It will be interesting to see how the Court finally rules on this crucial issue in New Jersey DWI law.

Many police vehicles have computers now known as mobile data terminals (MDTs). These laptop sized computers permit the officer to perform rapid searches of law enforcement databases. In addition to information concerning active criminal and traffic warrants, the MDT also provides basic information about motorists. By typing in the license plate number, the MDT provides information concerning vehicle registration and whether the owner of the vehicle is legally licensed to drive in New Jersey.

The question arises whether a MDT report of a problem with the vehicle registration or the owner’s driver’s license constitutes a sufficient legal justification to effect a motor vehicle stop. The New Jersey Supreme Court answered this question in State v. Donis, 157 N.J. 44 (1998). The court held that motorists have no expectation of privacy in their license plates or associated numbers. The plates are always located on the outside of the vehicle and must be easily viewable. On the other hand, there is an expectation of privacy with regard to information associated with the license plate number. Data such as the home address, social security number, and name of the owner of the vehicle are protected by both state and federal law.

In order to balance these competing interests, the New Jersey Supreme Court in Donis created a two step process to be performed by law enforcement. Police are permitted to randomly enter license plates numbers into the MDT. The system will report back basic information regarding the registration status of the vehicle, the driver’s license status of the owner, and whether the vehicle has been reported lost or stolen. Other personal information about the owner may not be displayed in the first step. If the data received during the first step warrants further investigation (because the vehicle is not registered or the owner’s license is suspended), the police are permitted to access personal information through the MDT. This may include the owner’s name and address, social security number, and criminal record. The Supreme Court has ordered that when the police do not receive evidence of problems with the vehicle or the driver, they may not proceed to step two and access personal information.

As part of the community care taking function, police departments frequently impound motor vehicles for reasons other than law enforcement. Motor vehicle accidents may leave vehicles in a spot where they block traffic or constitute a danger to the driving public. Also, improperly parked vehicles are sometimes removed from the highway for public safety reasons. Motor vehicles are also impounded by the police for law enforcement purposes. The vehicles may be unregistered or uninsured. They may contain evidence of a crime or the car itself may be connected to illegal activity. Police routinely conduct an inventory search of a motor vehicle after it is taken into custody.

The inventory search is conducted for multiple reasons. First, the police have an obligation to protect the owner’s property while the vehicle remains in police custody. Police departments also need to protect themselves against unwarranted claims or disputes over lost, damaged, or stolen property. The US Supreme Court has viewed inventory searches as a result of a lawful impoundment of a motor vehicle to be reasonable under the Fourth Amendment to the US Constitution. This is, therefore, another valid exception to the warrant requirement and constitutes a valid warrantless search under the Constitution.

The initial reaction to the reduced BAC limit in the state to .08 was that this would pose additional pitfalls for those accused of a DWI in New Jersey. While from a simplistic perspective this may appear to be the case, the tiering for a first offender under the statute has provided an interesting opportunity for the defense. In this regard, the DWI statute, N.J.S.A. 39:4-50 provides for a three month suspension for a first offense where the BAC of the accused is between .08 and .099, and a seven to twelve month suspension where the first offender’s BAC is .10 or above. Under the previous version of the statute, the BAC was .10 and the minimum suspension for a first offense was six months. What we now have, therefore, is a statute which limits license suspension to 3 months where there are either no BAC readings or the readings are less than .10 but in excess of .08. Accordingly, when a knowledgeable defense lawyer can either get the BAC readings excluded or reduced below .10, for example, based on a depletion argument, software tolerance argument, cell phone interference, etc., he can eliminate four months of suspension (at a very minimum). Conversely, the tiering of the statute provides an out for prosecutors in these situations insofar as they can still obtain a DWI conviction, albeit for a reduced suspension period. We find that the new statute provides an opportunity to provide an enhanced frequency of reduction in license suspensions for first time offenders.

A third party who seeks to take custody of an arrested intoxicated driver after he or she has been processed by the police is required to acknowledge the potential civil and criminal liability associated with permitting the intoxicated person to drive. The law enforcement agency releasing the intoxicated driver into the third party’s custody must provide the third party with a written notice of the civil and criminal penalties for knowingly permitting an intoxicated driver to operate a motor vehicle. There is no requirement that the third person sign the written notice as a condition of the intoxicated driver’s release. The warning drafted by the attorney general admonishes the person who volunteers to transport the intoxicated driver from police custody that he or she would be potentially liable for criminal sanctions and civil liability by permitting the operation of a motor vehicle by the intoxicated defendant.

The attorney general’s warning refers to the “allowing” offenses under N.J.S.A. 39:4-50(a) and mentions the license loss, fines, monetary penalties and possible incarceration associated with that offense. There are also vague references in the warning to criminal prosecution in the event the person taking responsibility for the defendant permits or facilitates the defendant’s operation of a motor vehicle while still intoxicated. If such a defendant were to become involved in an accident where other persons are injured or killed, the person who took responsibility for the intoxicated driver could be subject to indictment, prosecution, fines, mandatory sentences, and prison time. Finally, the warning advises that permitting an intoxicated defendant to operate a motor vehicle may result in civil liability in the event of an accident resulting in death, personal injury, or property damage.

The impoundment of motor vehicles of suspected intoxicated drivers is now mandatory. Whenever a person has been arrested for a violation of N.J.S.A. 39:4-50 for drunk driving or for refusing to submit to a breath test, the arresting officer must impound the motor vehicle that the defendant was operating. The vehicle must remain in impound for at least 12 hours. The law enforcement agency that impounds the vehicle may charge a reasonable fee for towing and storage of the vehicle. The vehicle may continue to be impounded until the fee has been paid.

After the initial 12 hour waiting period, either the defendant or his agent may reclaim the vehicle. The owner or lessee of the vehicle (who is other than the defendant or an authorized agent of the defendant when the defendant is the owner), may reclaim the vehicle prior to the expiration of the 12 hour waiting period provided that such person can meet certain statutory requirements. These include:

1. Presentation of current driving credentials, including a valid license, proof of ownership, proof of lawful authority to operate a vehicle, and proof of current liability insurance;

2. Proof that the operator is capable of operating a vehicle in a safe manner and would not be in violation of any provision of the motor vehicle statutes.

3. Proof that the person receiving the vehicle can comply with any other conditions for release of the vehicle that have been established by the arresting law enforcement agency.

The working definition of “under the influence of alcohol” as related by the case law has not changed much in the past 100 years. In State v. Emery, the New Jersey Supreme Court quoted with approval a definition that dated back to at least 1917. The court held “N.J.S.A. 39:4-50 penalizes a person who drives while under the influence of intoxicating liquor. Although prosecutions pursuant to these provisions are commonly and colloquially termed ‘drunken driving cases’, it is settled that the statute does not require as a prerequisite to conviction that the accused be absolutely drunk, in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.” State v. Emery, 27 N.J. 348 (1958).

So, at one extreme, it is not necessary that the defendant be intoxicated in the sense of being sodden with alcohol in order to be under the influence. At the other extreme, the condition of being under the influence must mean something more than having partaken of a single drink, even though physiologically, the smallest amount of alcohol has some slight effect or influence on the drinker. Considering these issues, it appears that the Legislature intended to strike a balance between these two extremes when using the term “under the influence”. The concept of being “under the influence of alcohol” is a general condition as a result of which a motor vehicle operator is so affected in judgment and control that it is improper for him to drive. Notice that the standard is improper, not unsafe, although proof of erratic driving is generally admissible as evidence of being under the influence. The proper standard of proof is proof of an impairment of either mental faculties or physical coordination.