New Jersey currently requires multiple DWI offenders to install ignition interlock devices in their vehicles under certain circumstances.  The ignition interlock device prevents the vehicle from operating until the motorist blows into a breath test device affixed to his or her ignition and logs a blood alcohol concentration below the legal limit of .08%.  Individuals who are subject to the regulation cannot register their motor vehicle or restore their license unless the interlock is installed.

Under “Ricci’s Law”, the requirement of an ignition interlock device would also apply to someone convicted of a First Offense of DWI where their blood alcohol content is .15% or above.  The law also extends the period an individual must possess an ignition interlock and grants authortity for Judges to order installation where someone has a blood alcohol concentration between .08% and .15% under special circumstances.

While I certainly appreciate the goals of the proposed law, I have heard many horror stories about ignition interlocks including cost, limited supply, over-sensitivity and malfunction.  If these problems can be worked out, it may be a worthwhile effort to combat those who simply do not have the ability to resist putting their keys in the ignition after they have been drinking.

New Jersey’s Supreme Court recently refused in Mazzacano v. Happy Hour Social and Athletic Club of Maple Shade, to impose a duty on social hosts to monitor potential intoxicated drivers who serve themselves alcohol at a gathering. The decision creates a boundary line in the liability exposure for those who organize social events where alcohol is supplied for consumption of event goers.

There have been a variety of commentators on the decision.  Plaintiff lawyers claim that the decision shall encourage DWI.  On the other hand, defense attorneys are taking the position that the ruling is nothing more than reinforcement of what they already believed the law to be.  In either respect, the law is now clear that there exists no duty to monitor the alcohol intake of guests who serve themselves such as, in this case, where patrons utilize self-serve taps on a beer truck.

As an individual who has been embroiled in these types of issues for almost two decades, I find it hard to believe that the ruling will have any real effect on the incidents of DWI in NJ.  In fact, if someone is already to the point that they are visibly intoxication (e.g. supposed trigger point for withholding additional alcohol), it is probably too late to accomplish much in terms of preventing these awful outcomes.    

The Monmouth County DWI Task Force conducts periodic roadblocks intended to apprehend and deter individuals from driving while intoxicated.  A checkpoint is scheduled this weekend in the Township of Middletown. The detail shall be stationed on Route 35 North from 11 PM Saturday to 3 AM Sunday at the Hudson City Savings Bank in Middletown. The police officers handling the roadblock shall include cops from Middletown and task force members. 

Middletown happens to be one of our mainstay municipal courts.  The Judges, Honorable Richard Thompson and Honorable Michael Pugliese, as well as the Municipal Prosecutors, Gerry Massell and Hank Gilbertson, are all reasonable and fair individuals.  We have been fortunate to achieve some great results in Middletown, including cases involving roadblocks.  Our lawyers would be happy to assist anyone with questions regarding a DWI in New Jersey, Monmouth County or Middletown.

We like to keep our readers advised of any roadblocks scheduled in NJ.  This weekend a checkpoint is scheduled on Southbound Route 35, in Shrewsbury NJ, just down the street from our Monmouth County Office. Drivers will be pulled into Shrewsbury Plaza in order to assess sobriety.

The public is often confused as to why notice of these roadblocks is provided.  Our constitution protects us from unreasonable search and seizure and also affords us due process under the law. These constitutional protections impose a fundamental requirement that the police possess probable cause or reasonable suspicion before they stop a motor vehicle.  The Courts have carved out an exception from this requirement for roadblocks but have imposed several conditions in order to maintain fundamental fairness.  First, the selection of the checkpoint location must be based on statistical data demonstrating that it is a prime location for incidents of drunk driving. Second, the police must afford notice to the public of the scheduled roadblock.

Anyone issued a DWI summons as a result of a roadblock is encouraged to retain the services of a NJ DWI Defense Attorney.  To this end, our lawyers are available 24/7 to provide assistance.

Alcoholism and DWI are obviously terms which individuals might correlate but chocoholism probably is not. Chocoholism is the addiction to chocolate, at least in theory.  The question which one might ask is what does an addiction to chocolate have to do with DWI?  I thought nothing until I read the recent report in an Australian newspaper wherein it was claimed that a DWI resulted from chocolate.  I have heard many defenses espoused by NJ DWI Defense Attorneys but never chocolate.

The Aussie DWI defendant apparently had a blood alcohol concentration of almost .20. She claimed that the intoxication was caused by excessive consumption of liqueur contained chocolates. The argument failed to work any sweet magic.
All kidding aside, our NJ DWI Defense Lawyers hear stories all the time about how foreign substances effect breath test readings.  Most recently, we have been confronted with multiple cases involving breath test readings distorted by invisalign braces. This is obviously a far cry from chocolate intoxication but the point is that individuals can become intoxicated or, more frequently, have elevated BAC readings because of something they ingested, were exposed to, or that was in their mouth.  I am happy to report that we have been able to get some sweet satisfaction in these cases.

There are some common law defenses available in DWI cases in New Jersey. Although the defenses generally available under the New Jersey Code of Criminal Justice are not available to a defendant in a drunk driving case (because it is a strict liability offense and a per se violation of the statute), common law defenses may be asserted. For example, the defense of duress under New Jersey common law may be used as a defense in a drunk driving case. State v. Fogarty, 128 N.J. 59 (1992). The easiest way to understand the defense of duress is someone is holding a gun to your head and forces you to drive even though you are intoxicated. This would be a valid common law defense of duress to a charge of drinking and driving in New Jersey.

Double jeapardy also applies in certain circumstances in New Jersey DWI cases. A plea of guilty in municipal court to drunk driving, which included merged offenses of reckless driving and failure to keep right, prevented a subsequent Superior Court prosecution for death by auto arising from the same incident based upon the double jeapardy clauses of the State and Federal Constitutions. State v. Dively, 92 N.J. 573 (1983).

We often receive calls from individuals who have a New Jersey Driver’s License and have been charged or convicted of driving while intoxicated (DWI) in another State. Basically, this is the procedure. The individual must first contact an attorney in another State (say for example North Carolina). They must then fight the DWI charge in the North Carolina courts and they are subject to the penalties for DWI in North Carolina. All North Carolina can do, because the individual has a New Jersey Driver’s License, is suspend the offender’s driving privileges in North Carolina and notify New Jersey of the DWI conviction. Then the individual will be subject to DWI penalties in New Jersey as well. Therefore, the matter must first be litigated in North Carolina and there are legal strategies available to avoiding punishment in New Jersey for this out of state DWI conviction. As a result, it is important to contact an experienced DWI attorney in New Jersey in order to avoid having your New Jersey Driver’s License suspended by the New Jersey Department of Motor Vehicles for an out of state DWI conviction. There will be a hearing at the Department of Motor Vehicles regarding your out of state DWI charge and it is important to have an attorney represent you in defending this matter.

Here are a few interesting cases concerning “operation of a motor vehicle” in the context of drunk driving charges in New Jersey. In State v. Morris, 262 N.J. Super 413 (1993), the Appellate Division held that a defendant’s attempt to start the engine of his car, which was thwarted when a police officer grabbed the keys from his hand, demonstrated an intent to operate the vehicle. The possibility of the vehicle being put in motion coupled with the defendant’s intent to start the engine was sufficient evidence to constitute operation within the meaning of N.J.S.A. 39:4-50(a).

In State v. George, 257 N.J. Super. 493 (1992), the court held that “Operation may be proved by any direct or circumstantial evidence–as long as it is competent and meets the requisite standards of proof. The vehicle’s operating condition combined with defendant’s presence behind the steering wheel permits the logical conclusion of intent to drive.” This is an Appellate Division case that conflicts slightly with State v. Daly, 64 N.J. 122 (1973), which is a New Jersey Supreme Court case that found the State failed to meet the burden of proof for operation when the defendant was sleeping behind the wheel of his car with the engine running. There must be some additional evidence of intent to drive or move the vehicle beyond merely being behind the steering wheel with the engine running. Clearly these issues turn on the specific facts of your individual case.

Finally, in State v. Dannemiller, 229 N.J. Super 187 (1988), the Appellate Division held that “It was reasonable for the trier of fact to conclude that defendant had actually operated the vehicle. Defendant himself stated that he had been in Philadelphia in the early evening and that his vehicle remained parked on the roadway because he had run out of gas. There were no other persons in the area; defendant was in the driver’s seat, and there was no other evidence that any other person was involved with the use of the automobile at the time in question.”

Here is some important case law on sentencing New Jersey DWI offenders. In State v. Luthe, 383 N.J. Super 512 (2006), the Appellate Division held that the amendments to the sentencing provisions of N.J.S.A. 39:4-50(a)(3) effective January 20, 2004, make it clear that a third or subsequent DWI offender must be sentenced to 180 days in jail, subject to as much as 90 days credit for time spent in an IDRC-approved in-patient residential facility. Work release or credits for out-patient therapy are not permitted for these defendants.

Also, in State v. Burroughs, 349 N.J. Super 225 (2002), in order to receive the benefit of a step down in sentencing (being sentenced as a first rather than a second offender or a second offender rather than a third), the defendant must have a period of a full ten years between his second and third offenses. Furthermore, in determining the relevant date for calculating sentence enhancements based upon a prior drunk driving offense, the date of the prior offense controls as opposed to the date of the prior conviction. State v. Bischoff, 232 N.J. Super 515 (1989).

In a drinking and driving prosecution, almost all evidence discovered during a lawful, warrantless search of a motor vehicle is legally admissible against the defendant under the plain view exception to the warrant requirement. The plain view doctrine was established by the United States Supreme Court in the case of Coolidge v. New Hampshire, 403 U.S. 443 (1971). The original plain view exception required proof of three elements: 1) the police officer had to be lawfully in the viewing area. Basically, the officer must have a legal right to be in the place from which he or she makes the observations. 2) the officer was required to discover the evidence inadvertently, meaning that the officer did not know where the evidence was in advance. 3) the criminal nature of the item must be immediately apparent.

The original test has been modified by the United States Supreme Court in subsequent decisions. In Texas v. Brown, the immediately apparent requirement was modified as the police must have probable cause to associate the item seen in plain view with criminal activity. Texas v. Brown, 460 U.S. 730 (1983). In 1990, the Court again modifed the test as the inadvertent aspect of the discovery of evidence was not a necessary condition. Basically, they did away with the second prong of the test.

As modified, the New Jersey Supreme Court has accepted the three requirements governing the plain view exception as described in Brown. As modified, the plain view exception in New Jersey will require proof that:

1) at the time of the viewing of the evidence, the officer was in a location where he or she had a right to be.

2) the officer discovered the evidence inadvertently, meaning that he or she did not know in advance where the evidence was located and did not intend beforehand to seize it; and

3) there was probable cause to associate the items seen in plain view with the evidence of criminal activity.

Interestingly enough, New Jersey has yet to drop the inadvertent requirement from plain view analysis as was done by the United States Supreme Court in Horton v. California, 496 U.S. 128 (1990).