The Law Offices of Jonathan F. Marshall, is a statewide criminal defense firm with twelve offices throughout New Jersey. Our team includes ten (10) attorneys that dedicate their practices exclusively to defending the accused, making it a unique commodity in the state. The qualifications of the lawyers are also impressive and include:
• Over 200 Years of Combined Experience Representing Clients Charged With Indictable Crimes, Disorderly Persons Offenses and Serious Motor Vehicle Violations
• Former County Prosecutors Who Have Served At The Highest Levels Such As Director Of Major Crimes, Juvenile, Domestic Violence, Special Operations, Homicide, Drug Task Force, Guns, and Even An Entire Trial Division
• Certified Criminal Trial Attorneys
• Recognition as Top 100 Trial Lawyers by the National Trial Lawyers Association, Top 10 Defense Lawyers in New Jersey by the National Academy, Ten Leaders in both Criminal Defense & DWI in New Jersey and Superlawyers
Free consultations with an attorney at the firm are always free. You can reach us 24/7 at 877-450-8301.
Disorderly Persons Offense Grounds to Disposses Public Housing Tenant
A disorderly persons offense (DP) in New Jersey is a petty offense that is handled in municipal court. These types of offenses include simple assault and harassment. In the recent case of Housing and Redev. Auth. of Twp. of Franklin v. Miller, A-2463-06, the court held that a tenant may be evicted from federally subsidized public housing upon conviction for a disorderly persons offense. The court held that a statute allowing eviction for “criminal activity” (known as the one-strike law) should be read broadly, consistent with its purpose of making public housing safe. Therefore, Judge Donald Coburn’s panel found no intention by Congress to exclude petty offenses from the “criminal activity” that justifies eviction. A Somerset County Superior Court judge found that the housing authority was within its rights to terminate the lease under 42 U.S.C.A. 1437d(1)(6), which requires that leases of federally subsidized housing provide that “any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug related criminal activity on or off such premises, engaged in by a public household tenant, any member of the person’s household, or any guest or other person under the tenant’s control, shall be good cause for termination of the tenancy.” On appeal, the judges agreed that a DP offense was included in criminal activity sufficient to warrant eviction.
Allowing Intoxicated Operation
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.
Blood Tests in DWI Cases
New Jersey Police Agencies rely on the breathalyzer to provide the evidence of a suspected drunk driver’s blood alcohol concentration (BAC) in the vast majority of cases. However, there will be occasions when the police will seek to obtain this vital evidence by taking a sample of the defendant’s blood for testing and analysis. Typically, the extraction of a blood sample from the body of the defendant in a drunk driving case will occur in the five situations:
1) Defendant Has Been Injured: Police Blood Samples
When the police respond to the scene of a motor vehicle accident, one of their primary responsibilities is to provide immediate care and seek emergency medical treatment for those who have been injured. During the course of their investigation, the police may develop evidence that leads them to believe that one of more of the operators of the motor vehicles involved in the accident may have been under the influence of drugs or alcohol. If the level of belief rises to probable cause, the police may effect the arrest of the operator for a violation of N.J.S.A. 39:4-50(a). However, due to injuries sustained in the accident, the defendant may require immediate medical treatment at a hospital or other emergency medical facility. This fact prevents the police from having the defendant take a breath test within a reasonable period of time after operating the vehicle. Thus, when confronted with this situation, the police may request the attending medical staff to extract samples of the defendant’s blood for purposes of determining the blood alcohol concentration (BAC).
2) Defendant Has Been Injured: Hospital Blood Samples
There will be times when the injuries are so severe to the defendant that the police will be unable to secure independent blood samples for their own use. Generally, this is due to the fact that the doctors or other emergency room personnel are working on the defendant in an effort to save his or her life. However, in virtually every case, the hospital will withdraw blood from the body of the defendant and perform a drug and alcohol screen in order to determine the level of alcohol in the defendant’s body, and to identify any drugs which may be present. Obviously, emergency room personnel need to know this information to avoid introducing substances into the defendant’s body during treatment that may adversely interact with the drugs and alcohol in the defendant’s system. New Jersey law provides procedures whereby the investigating police can receive a copy of the results of the blood screen taken by the emergency medical personnel.
3) Defendant Refuses to Provide a Breath Sample
New Jersey law requires a motorist who operates a motor vehicle on any street, road, or highway to voluntarily provide breath samples for purposes of determining his or her blood alcohol concentration (BAC). See State v. Dyal 97 NJ 229 (1984). These tests are a vital component of a drunk driving prosecution. The results may constitute sufficient evidence to prove a per se violation of the drunk driving statute. Since breath samples cannot be extracted involuntarily, an individual’s Breath Test Refusal frustrates the prosecutor’s ability to prove a driving while intoxicated or driving under the influence charge. Law enforcement may resort to blood testing as a means of obtaining samples as there is no ability to refuse the drawing of samples. See Schmerber v. California, 384 U.S. 757 (1966). Thus, if the police have probable cause to believe that the defendant has operated a motor vehicle in violation of N.J.S.A. 39:4-50(a), they may transport him or her to a suitable medical facility and have a blood sample taken by medical personnel, against the will of the defendant, if necessary. See State v. Ravotto, 169 N.J. 227 (2001).
4) Defendants Blood Alcohol Content (BAC) is Dangerously High
In this case, the defendant has voluntarily provided a valid breath sample for the breathalyzer. Evidence of a dangerously high blood alcohol concentration from the breathalyzer may prompt the police to transport an arrested defendant to a hospital or other medical facility for additional testing, treatment, and observation. Many police departments in New Jersey develop Standard Operating Procedures which mandate blood testing at a hospital when the results of the breathalyzer are in excess of a given level. In New Jersey, the legal limit is .08%. Therefore, for example, a blood alcohol concentration in excess of .28% (almost 4 times the legal limit) may prompt the police to transport the defendant to a hospital. Levels of intoxication this high, when left untreated, can result in serious complications or death.
5) Defendants Blood Alcohol Content is Dangerously Low: Suspected Drug Use
Defendants who are arrested for drunk driving may sometimes exhibit conduct while in custody that is inconsistent with their blood alcohol content (BAC). The defendant may voluntarily submit to a breath test and show a very low reading, such as .02% or .05%, which is under the legal limit in New Jersey which is .08%. However, the defendant’s mental faculties and physical coordination may be profoundly affected such that experienced police officers reasonably believe that narcotics may be involved. The defendant may have trouble standing or walking. He or she may be unable to stay awake or be incoherent. When confronted with this factual scenario, the police will transport the defendant to a hospital or other suitable medical facility for blood testing. The police may also request a urine test. These proofs may be the only evidence available to prove that the defendant operated his or her motor vehicle while under the influence of drugs or alcohol. See State v. Tamburro, 68 N.J. 414 (1975).
DWI Charge 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.
Out of State Drivers and DWI in NJ
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.
Breath Tests and “Reasonable Time”
Prosecutions of DWI cases requires that the breathalyzer test be administered within a reasonable time after a defendant is stopped for drunk driving. Judge Haines discussed this issue in State v. DiFrancisco, 232 N.J. Super 317 (Law Div. 1988). “One required proof as to the proper administration of the test is that it be performed within reasonable time after the defendant has been stopped for drunk driving. The State must supply this proof by clear and convincing evidence. In this case the test was given as much as 3 hours and 50 minutes after the drunk driving occurred, unless the defendant was ‘driving’ at the time of arrest at 3:10 a.m. In either case the State was obliged to prove that the test was given within a reasonable time. This court, absent such proof, has no way of knowing what time is reasonable, a conclusion that must depend on a variety of facts, such as time and the amount of alcohol consumption. The State presented no testimony on that issue and therefore failed to carry the burden of proof, therefore making the breathalyzer test results inadmissible.”
Therefore, it appears that a reasonable time after the defendant is stopped is a totality of the circumstances analysis based on the specific facts of each case. Moreover, the State has the burden of proving that the test was given within a reasonable time.
DWI Strategies in New Jersey
We had a client come in recently who was charged with DWI in New Jersey. Her breathalyzer readings showed a blood alcohol content of .09 and .08 (the test is administered twice). In New Jersey, in terms of a prosecution for driving while intoxicated, the State is forced to use the lower of the two readings (in this case .08). The legal limit in New Jersey is .08 % BAC. Therefore, this client’s readings are right at the legal limit. In this case, you can retain a breathalyzer expert (usually a former State trooper) to show that the breathalyzer machines are not perfect and usually have a .01% human error in the blood alcohol readings. As a result, if we are able to show that this error exists and that the .08% readings are possibly .07% (below the legal limit), the State will be unable to prove driving while intoxicated beyond a reasonable doubt. Therefore, our client will avoid a DWI charge on her record and will avoid a minimum three month license suspension (which is required for BAC readings between .08% and .10 % in NJ).
Under the Influence of Drugs and DWI Prosecutions
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.
Under the Influence of Alcohol Defined
“Under the influence” of alcohol seems fairly easy to define and understand. However, legal interpretation is often very different than a conversational understanding of a word or phrase. This legal term has been interpreted many times by the courts in New Jersey. In State v. Tamburro 68 N.J. 414 (1975), the New Jersey Supreme Court defined “under the influence” of drugs or alcohol as “The language ‘under the influence’ used in the statute has been interpreted many times. Generally speaking, it means a substantial deterioration or dimunition of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic, hallucinogenic or habit producing drugs.” In State v. Johnson 42 N.J. 146 (1964), the Court stated that it was the intention of the Legislature under NJSA 39:4-50(a) (the drinking and driving statute) in forbidding the operation of a motor vehicle while under the influence of alcohol “to prescribe a general condition, short of intoxication, as a result of which every motor vehicle operator has to be said to be so affected in judgment or control as to make it improper to drive on the highways.” Moreover, the New Jersey DWI statute “penalizes a person who drives ‘while under the influence of intoxicating liquor.’ Although prosecutions pursuant to its 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). Finally, in State v. Rodgers 91 N.J.L. 212, the court discussed under the influence by holding: “The expression ‘under the influence of intoxicating liquor, covers not only all the well known and easily recognizable conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors, and which tends to deprive that person of that clearness of intellect and control of himself which he would otherwise possess.”
As you can see, there is considerable direction regarding the definition of “under the influence”when conducting DWI prosecutions in New Jersey.
What constitutes “operation of a motor vehicle” under New Jersey DWI Law?
“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.