Driving while intoxicated (DWI) is a very serious matter in New Jersey. Though not a criminal offense, a DWI conviction carries stiff penalties including:

  • Jail Time & Fines
  • License Suspension
  • Mandatory DWI Classes
  • Community Service
  • Sustaining Ignition Interlock Device

New Jersey Drunk Driving Laws

There is significant variation across the country regarding the circumstances under which courts permit the police to detain a suspected drunk driver based on an anonymous tip. Review of the common elements found in the various approaches indicates that the three-part test formulated by the Ninth Circuit Court of Appeals is fairly representative of the nature of the inquiry: (1) the tip must include a sufficiently broad “range of details”; (2) the tip must predict the suspect’s future movements rather than simply describing easily observable conduct; and (3) the future movements must be verified by independent police observation. Thus, if you are detained for DWI based on an anonymous tip, your New Jersey DWI attorney will need to argue that the tip did not sufficiently predict your future movements to justify the detention.

Anonymous tip detention cases are decided largely on the specific facts of each case. For instance, in a case in which the anonymous informant accurately predicted when the suspect was leaving her apartment, what car she was driving, and where she was going, the Florida Supreme Court held that the tip contained sufficient predictability of the suspect’s future movements to justify the detention. On the other hand, in a case where the police had no information about the informant and the tip stated only that the suspect would be wearing a plaid shirt and carrying a gun, the court deemed the detention unlawful.

In light of the importance of the level of predictability in the tip and the anonymous tipster’s reliability, your New Jersey DWI attorney will conduct a thorough factual inquiry during the investigation phase of your case in order to verify that your detention was legal. If his or her investigation shows that the anonymous tip failed to satisfy the test set forth by the court in your jurisdiction, the DWI charge against you may be dropped.

New Jersey also has an implied consent law. A new law would expand implied consent to cover blood draws and requests for urine. Currently, New Jersey’s implied consent law requires that all who drive on New Jersey roads and highways submit to the taking of breath samples. The current law does not require that those same drivers provide voluntary blood or urine samples. Until April, it was believed that the exigency created by the quick dissipation of alcohol in the blood would allow a police officer to obtain a blood sample without a warrant. However, the United State Supreme Court decision in Missouri v. McNeely changed that. In McNeely, the SCOTUS held that there was, and never has been, per se exigency, and that absent some real exigency or another exception of the warrant requirement, results taken without a warrant would be inadmissible.

The ramification of McNeely has been resounding. In States like New Jersey, where blood was not included in the implied consent, getting blood from arrestees has been difficult. Under existing NJ case law, one cannot consent, nor withhold consent, to a blood test, which has, for now, eliminated one of the most powerful exceptions to the warrant requirement. Without consent or exigency, Police Officers must obtain a warrant from a judge. However, Municipal Court Judges, those who hear drunk driving cases, have no authority to issue telephonic warrants, leaving such duties to Superior Court Judges…for whom police officers may be reluctant to wake up for an early morning warrant request.

The new implied consent law would read, in part, as follows:

“Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath, urine, or blood for the purpose of making chemical tests to determine the content of alcohol in his blood…No chemical test of a person’s breath, urine, or blood, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant.”

DWI Defenses

New Jersey DWI Per Se

There are two types of impairment in a New Jersey DWI case: physical impairment and legal impairment. Legal impairment, also known as per se, can be charged when an individual’s blood alcohol content is at or above the legal limit of .08. The legal or per se limit for alcohol intoxication is .08. This means that if someone’s BAC is at or above this threshold, he or she is intoxicated under the law.

It is important to understand that having a per se level of intoxication does not mean that a person is also physically under the influence. However, having a BAC at or above the legal limit will result in an arrest for DWI per se.

In order to prove that a defendant was indeed DWI per se, the state must show that:

  1. The breath testing machine was in good working order
  2. The officer who administered the test was certified to do so
  3. The test was conducted according to official police procedure

An experienced defense attorney will work to discredit these. If the defense is able to find an issue in any of these three areas, then the test result will be discredited and the defendant cannot be convicted of a per se violation.

As stated, there are two types of impairment under New Jersey law: legal impairment and physical impairment. Legal impairment is measured by a person’s blood alcohol content; anything above .08 is considered impaired. On the other hand, physical impairment is when someone shows obvious signs of intoxication.

Signs of physical impairment may include:
Slurred Speech
Bloodshot or Watery Eyes
Difficulty Preforming a Simple Task
Problems with Sensory or Motor Skills
Difficulty Balancing
Odor of Alcohol

Because alcohol affects people differently, not everyone who is exhibiting signs of physical impairment will also have a BAC at or above the legal limit.

You may be surprised to learn that it is not necessary to have a BAC reading at or above .08 in order to be arrested for—and even convicted of—DWI. Showing signs of intoxication could land you in police custody, facing a physical impairment charge.

Reasonable Suspicion

Police often use a motor vehicle stop, also known as a detention, to assess a driver’s condition and to search for traffic violations that may result in DWI prosecutions. The officer must follow criminal procedure laws in order to make a permissible stop. If an officer conducted a motor vehicle stop that led to your DWI case, New Jersey DWI lawyer Steven Hernandez may be able to develop a legal strategy that challenges the lawfulness of the detention.

An officer cannot make a motor vehicle stop when there is no reason to do so—for example, an officer cannot pull over a car to only check the driver’s license and registration. Accordingly, many officers claim they initiated detentions because they personally witnessed traffic violations. The legal standard for stopping a car based on a traffic violation comes from the United States Supreme Court case of Delaware v. Prouse (1979).

According to Prouse, police must have an “articulable and reasonable suspicion” that the motorist has participated in unlawful activity. For example, an officer may stop a car if the officer objectively believes that the driver is unlicensed or does not have a properly registered vehicle. An officer may also pull over a car due to suspicions or observations of other unlawful conduct. Without a reasonable suspicion of unlawful activity, the officer does not have the basis to make a lawful stop. The officer does not, however, need to meet the legal standard of “probable cause.” The probable cause standard applies when the officer makes an arrest but not when the officer initiates a motor vehicle stop.

Police, DWI lawyers, and prosecutors often disagree regarding whether a motor vehicle stop met the standard of reasonable suspicion. Officers sometimes make mistakes due to a need to quickly assess the facts at hand. When an officer has misapplies those facts in order to make a traffic stop, a New Jersey DWI lawyer may be able to argue that even a good faith stop, if based on a mistaken assessment of facts, does not excuse the officer from following the reasonable suspicion standard. In these situations, an improper, unlawful stop may weaken the state’s DWI case against you.

Miranda Rights and DWI in New Jersey

During a DWI investigation, as with all other types of investigations, you have the right to remain silent from the very moment you are stopped by the police. Answering a police officer’s questions can never help you.

You are never going to talk yourself out of an arrest; in fact, you may talk yourself into an arrest, so it’s better to remain silent. If you have already been arrested, answering the officer’s questions will only be assisting the prosecution by giving evidence that will be used against you.

Under New Jersey case law, the only time you must respond to an officer’s questions is when you are asked to take a breath test. You are required to answer “yes” or “no.” If you remain silent, the officer will advise you that, remaining silent is unacceptable, and if you still do not answer you will be charged with a refusal.

New Jersey DWI Mobile Video Recording Law

On March 1, 2015, a new law went into effect which requires all municipal police vehicles hereafter purchased to be equipped with mobile video recording systems. This requirement applies to police vehicles primarily used in traffic stops and was signed into law in September of 2014. Laws of 2014, c. 54. The law was originally introduced as legislative bill A-2280. The Attorney General is also required to develop rules and regulations as to the specifics of the devices.

The recordation requirement is another indication of the Legislature and courts in New Jersey intending to require police not only to preserve evidence which already exists, but also to create evidence which would be objective as to guilt or innocence. In State v. Gordon, 261 N.J. Super. 462 (App. Div. 1993), the court held that the police do not have a duty to video DWI defendants or to “create evidence”. However, as a matter of policy and practice, in 2006 the Attorney General of New Jersey directed that all statements and confessions in first through third degree crimes be recorded by law enforcement. AG Dir. 2006-02. In State v. W.B., 205 N.J. 588 (2011), the State Supreme Court held that police must retain and disclose notes written at the time of their observations, as opposed to discarding them after the final police report was written and typed. Failure to preserve such notes is a Sixth Amendment Right to Confrontation violation. The Attorney General of New Jersey subsequently issued Directive 2011-2 which requires the retention and transmission of all contemporaneous law enforcement notes of witness interviews and crime scenes.

As technology advances, the ability to create objective electronic recordation of events becomes easier and less costly. At the same time, recent events in New Jersey and elsewhere in the nation, point to the need for and value of recordings to determine the truth when law enforcement action is involved. Many have called for police body cameras for all officers in accordance with this trend. Neighboring New York has instituted a body-camera pilot program.

In DWI cases, the stop of the motor vehicle and the observations of the officer, including field sobriety tests, can be crucial to the defense. Objective recorded evidence allows the DWI defense attorney to use the video to challenge the officer’s observations and conclusions.

New Jersey Drugged Driving Laws

New Jersey is among the states that have legalized the medicinal use of marijuana; however, it is still illegal to drive while intoxicated by marijuana, prescription drugs, and any other controlled substances in this state.

The penalties for driving under the influence of drugs are the same in New Jersey as the penalties for driving while intoxicated by alcohol. For a first offense, this includes:

  1. License revocation of three months
  2. $500 maximum fine
  3. Possible jail time
  4. Increased car insurance rates
  5. $1,000 per year surcharge by the Motor Vehicle Commission

Any DWI will appear on your driving record for the rest of your life.

Drugged Driving Cases

Driving under the influence of medical marijuana is not the only problem. In State v. Tamburro, it was ruled that if sufficient expert testimony of the physical and mental condition of an individual indicated that he/she was “under the influence” of a narcotic, then it is not necessary that the particular drug be identified.

So this could pose a problem for people who take doctor prescribed medications. The drug need not be identified, which means the person can be convicted of using medications just the same way as a person who is taking street drugs.

Many times a person on allergic medications can exhibit symptoms of blood-shot, watery eyes, and a raspy voice. And even if a blood or urine test is taken, the drug—whether it is marijuana or a prescription medication—can remain in the system long after the impairing effects have worn off. Innocent people are being prosecuted for just that: driving after having taken doctor prescribed medication, including many painkillers, cough medicines, and allergy pills that do not impair a driver. It also depends on the person’s body size and resistance to side effects.

In another case, State v. Tiernan, a prior conviction for driving under the influence of drugs was reversed and the officer’s testimony thrown out. It was ruled that a police officer is not qualified as a drug recognition expert by the fact that he completed mandatory narcotics training and took subsequent week-long narcotics course. The ruling highlights the plain truth that most officers have only received basic training in drug recognition, not like Drug Recognition Experts who undergo intensive training. Then, based on the officer’s observations of what they perceive to be symptoms of impairment, the case is taken to court. It would take a DRE to come to the scene and examine you to determine if you were unfit to drive.

Defending DWI Drug Cases

We will challenge what expertise the officer had in determining impairment and if the officer looked for physical signs such as abnormal pulse rate or abnormal pupil dilation. Your attorney will obtain evidence, such as the pharmacology of the prescription drug, showing that your driving was not impaired, and possibly present other causes of impairment.

The second step would be to analyze the validity of the scientific evidence. Our attorneys will conduct an investigation into whether the blood or urine sample was accurately measured by the police. Due to improper use, sample contamination, or negligent laboratory procedures, the results may be proven to be unreliable. We will question the chain of custody and the handling of the sample.