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.
Breath Testing Devices
The following are important New Jersey Supreme Court decisions concerning the admissibility of breath test results. In State v. Garthe, 145 N.J. 1 (1996), the Court held that the protocols established by the State police for testing breathalyzer machines must be designed to ensure the machine will produce reliable results, but that the adoption of those protocols is more akin to a State Police intra-agency determination rather than rulemaking. Therefore, adoption or modification of the protocols need not comply with the Administrative Procedure Act.
Furthermore, in the same court decision, the Court established that absent evidence that the test protocols established by the Division of Criminal Justice and State Police are not scientifically reliable to establish that the breathalzyer machines are in proper operating order, the State may, subject to the business records and public records exceptions to the hearsay rule, offer Breath Test Instrument Inspection Certificates as admissible evidence in DWI trials. Id. at 13-14. This remains the norm in New Jersey DWI trials as these inspection certificates are key in establishing the reliability of the breathalyzer readings.
Finally, in Romano v. Kimmelman, 96 N.J. 66 (1984), the New Jersey Supreme Court held that a breathalyzer test result is admissible in a DWI prosecution only if it is first established that “the breathalyzer instrument is in proper working order, is administered by a qualified operator and is used in accordance with accepted procedures.” The State bears the responsibility for establishing all conditions of admissibility by clear and convincing evidence.
Right to an independent test in DWI cases
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).
Curing a Refusal
We are many times confronted with the question of whether or not you can “cure” a refusal after refusing initially to submit to a breathalyzer test. The answer is no. This issue was examined in State v. Bernhardt, 245 N.J. Super 210 (1991). In this case, the defendant refused at least 10 requests from the State Police to submit to a breathalyzer test. The police, for good reason, considered his conduct sufficient to constitute a refusal. However, after he spoke with an attorney by phone, he asked the police if he could take the breath test. The police, at this point, declined to administer the test. The Appellate Division held that there is a bright line rule of law in New Jersey that there is no right for a defendant to “cure” an initial refusal to submit to the breathalyzer test by agreeing to submit to the test later. Under the public policy of the implied consent law, there is no right to cure an initial refusal to submit to a breathalyzer test. State v. Corrado, 184 N.J. Super 561 (1982).
Basics of DWI Stops
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.
Justification for motor vehicle stops
It is well settled that the stopping of a motor vehicle and the detention of its occupants constitutes a seizure within the meaning of the Fourth and Fourteenth Amendments to the US Constitution, even though the purpose of the stop is limited and the detention is brief. The United States Supreme Court in Delaware v. Prouse, 440 U.S. 648 (1979), held that the police must have at least an articulable and reasonable suspicion that a violation of the traffic laws has occurred. This may include a reasonable suspicion that the driver is unlicensed, the vehicle is not properly registered, or that an occupant in the vehicle is subject to seizure for a violation of the law. Absent a reasonable and articulable suspicion, individual police officers may not use their unbridled discretion to effect motor vehicle stops. The Prouse case involved a random stop by a police officer to check on a driver’s credentials. There was no justification for the stop other than a desire to perform a random check. Although the Supreme Court ruled that the random aspect of the stop was unreasonable, it did not rule out other types of spot checks by the police. One such suggested stop would be a supervised road block where all vehicles would be stopped and questioned about driving credentials. However, the court was clear that individual officers could not effect motor vehicle stops in the absence of a reasonable and articulable suspicion.
More on New Jersey’s Plain View Exception to the Warrant Requirement
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.
The “Plain Smell” doctrine as an exception to the warrant requirement
The discovery of evidence during a lawfully executed traffic stop or warrantless search under the plain view exception to the warrant requirement is not necessarily limited to what the police officer sees. New Jersey has also adopted the “plain smell” doctrine. In the typical plain smell case, the officer will effect a motor vehicle stop and detect some odor that will provide him or her with probable cause to believe that an offense has been or is being committed. Common examples are the smell of marijuana (burning or otherwise) coming from inside the vehicle or the odor of alcohol on the breath of the operator or passengers within the vehicle. If the officer’s conduct in performing the search meets the three requirements under the plain view exception (as discussed in a previous article), a suspicious odor may provide sufficient probable cause to invoke a more thorough search under the automobile exception. Briefly, the three requirements under the plain view exception in New Jersey are
1) at the time of the viewing of the evidence, the officer was in a location where he or she had a legal 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 to beforehand seize it; and
3) there was probable cause to associate the items seen in plain view with evidence of criminal activity.
If these three prongs are met, a suspicious smell is sufficient to create probable cause for a warrantless search of a motor vehicle under the automobile exception.
The Automobile Exception to the Warrant Requirement
There are several exceptions to the requirement that the police obtain a warrant to search an area such as a house or a vehicle. One of these exceptions that I have previously discussed is the plain view doctrine. Another exception to the requirement that the police obtain a warrant is the automobile exception. Article 1, paragraph 7 of the New Jersey Constitution has often been interpreted by the New Jersey Supreme Court to provide more protection in various aspects of arrest, search, and seizure law than does the Fourth Amendment to the US Constitution. This is the case with regard to the automobile exception to the warrant requirement. Under federal law, the Court requires merely that probable cause exists to believe that a vehicle contains evidence of a crime. Pennsylvania v. Labron, 518 U.S. 938. If this is the case, there is sufficient justification to conduct a search without a warrant.
This view is not shared by the New Jersey Supreme Court. In State v. Cooke, the court ruled that Article I, paragraph 7 of the New Jersey Constitution requires a finding of both probable cause and exigent circumstances in order to support a warrantless search under the automobile exception to the warrant requirement. The exigent circumstances must make it impractical that the police obtain a valid search warrant.
Possession of a Controlled Dangerous Substance in an Automobile
The New Jersey Supreme Court recently heard the case of State v. Scott on January 10, 2008. The Court held that ample evidence supported the conclusion that the passenger in the vehicle possessed the controlled dangerous substance (CDS) found in the car. The facts of the case are as follows:
In the early morning hours, Paterson police officers pulled over a car being driven without the headlights on and in an erratic manner. It was being driven by Shariffe Parks; defendant Morgan Scott was a front seat passenger. After detecting a strong odor of marijuana and learning that Parks did not have a driver’s license, the officers asked him (the passenger) to exit the vehicle. The officers flashed their lights inside the car and saw a large plastic bag on the floor which they believed to contain drugs. Tests later revealed that the bag contained crack cocaine and marijuana. The driver and the passenger were convicted of possession of cocaine and marijuana. On appeal, the Appellate Division agreed with the trial court that there was sufficient evidence to support actual or constructive possession. The court stated that possession cannot be based on mere presence at the place where the contraband is located; there must be other circumstances that permit an inference of defendant’s control of the contraband. Criminal possession signifies intentional control and dominion, the ability to affect physically and care for the item during a span of time, accompanied by the knowledge of its character. Here, the court noted that the drugs were in plain view on the floor of the car in front of the driver’s seat.
The court also found that the odor of marijuana, the testimony that it was customary for drug dealers to work in teams, and the permissible inference that the occupants were trying to figure out where to hide the drugs when they continued to drive for several blocks after the officers activated their overhead lights supported the trial court’s decision to deny the defendant’s motion for acquittal.
Recent Alcotest Developments
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.