This is a sampling of cases discussing DWI in New Jersey. If you have specific
questions about any of these cases and how they may apply to your situation,
please call me for a free consultation.
- "Allowing" DWI
STATE v.MICHALEK (Law Div. 1985) defendant could not be convicted of crime in
the absence of proof that he knew, or reasonably should have known, that
operator was intoxicated or had blood-alcohol concentration of .10% or more.
- Arrest
STATE v. LIBERATORE (Law Div. 1996) After arresting defendant for resisting
arrest following improper left turn, police officer's entry into porch doorway
to regain custody of defendant was reasonable; defendant was in sight of
officer, and entry into porch doorway was continuation of overall arrest
sequence.
- Bicycles
STATE v. MACHUZAK (Law Div. 1988) driving while intoxicated statute was
inapplicable to operation of nonmotorized pedal-type bicycle.
- Blood Testing
Under both federal and state law, the State may force a suspect to a undergo
blood test to determine the amount of alcohol in his blood. Schmerber v.
California, supra, 384 U.S. at 770-71, 86 S.Ct. at 1836, 16 L.Ed.2d at 920;
State v. Stever, 107 N.J. 543, 558, 527 A.2d 408 (1987), cert. denied, 484 U.S.
954, 108 S.Ct. 348, 98 L.Ed.2d 373 (1987); State v. Dyal, 97 N.J. 229, 238-39,
478 A.2d 390 (1984); State v. Macuk, 57 N.J. 1, 14, 268 A.2d 1 (1970).
"[A]cquiescence is not legally significant or necessary." Macuk, supra, 57 N.J.
at 15, 268 A.2d 1. "Of course, the sample should be taken in a medically
acceptable manner at a hospital or other suitable health care facility." Dyal,
supra, 97 N.J. at 238, accord Schmerber, supra, 384 U.S. at 771-72, 86 S.Ct. at
1836, 16 L.Ed.2d at 920 (deeming a reasonable manner to include the taking of
blood by a physician in a hospital "according to accepted medical practices").
STATE v. RAVOTTO, (App. Div. 2001) Police cannot use unreasonable force in
obtaining defendant's blood sample. If an individual vehemently objects to
giving blood, it cannot be extracted against a persons will.
STATE v. BROADLEY (Law Div.1992) due to failure of township police department
to establish reasonable procedures to provide DWI suspects an opportunity to
exercise right to an independent blood test, breathalyzer results had to be
suppressed.
STATE v. ETTORE (App. Div. 1988) held that statutory right of motorist tested
for blood alcohol by police to have independent test performed was not violated
by police in refusing to transport motorist to hospital for test, refusing to
permit motorist to leave by taxi unaccompanied by responsible escort, pursuant
to state police policy, and not releasing motorist until her son picked her up,
even though, when motorist arrived at emergency room of hospital, hospital
refused request for testing because there was "no medical reason" for testing.
STATE v. HICKS (App. Div. 1988) refusing to allow defendant to make telephone
call would not require suppression of breathalyzer results unless defendant
established, by preponderance of believable evidence, that call was sought for
purpose of arranging or discussing possibility of independent test and that
independent test could have been conducted in reasonable period of time so as
to produce relevant or probative evidence.
- Breathalyzer (Admissibility)
For the results to be admissible, the State must establish that the test was
properly administered, and proof of proper administration "includes full proof
that the equipment was in proper order, the operator qualified and the test
given correctly...." State v. Johnson, 42 N.J. 146, 171, 199 A.2d 809 (1964).
See also Romano v. Kimmelman, 96 N.J. 66, 90, 474 A.2d 1 (1984).
- Breathalyzer (Extrapolation)
STATE v. DOWNIE (NJ 1990) Defendants in driving while intoxicated cases are not
permitted to challenge blood alcohol determinations made by breathalyzer by
taking results and extrapolating to produce estimate of content at time of
arrest.
STATE v. TISCHIO (NJ 1987) Extrapolation from results of breathalyzer test to
demonstrate that defendant's blood-alcohol level was less than legal 0.10% at
time he was actually driving is not admissible as probative evidence in
prosecution for statutory offense of driving under the influence.
- Breathalyzer (Reliability)
The NJ Supreme Court has steadfastly held that the breathalyzer "reads alcohol
with unimpeachable accuracy" and "is unsurpassed in its combined practicality
and usefulness." State v. Downie, 117 N.J. 450, 468-469, 569 A.2d 242 (1990),
cert. denied, 498 U.S. 819, 111 S.Ct. 63, 112 L.Ed.2d 38 (1990). See also State
v. Tischio, 107 N.J. 504, 527 A.2d 388 (1987), appeal dismissed, 484 U.S. 1038,
108 S.Ct. 768, 98 L.Ed.2d 855 (1988); Romano v. Kimmelman, 96 N.J. 66, 474 A.2d
1 (1984); State v. Maure, 240 N.J.Super. 269, 277-279, 573 A.2d 186
(App.Div.1990), aff'd o.b., 123 N.J. 457, 588 A.2d 383 (1991).
STATE v. LENTINI (App. Div. 1990) per se offense of driving while intoxicated
was established by 0.10% reading from properly operated and properly
functioning breath testing machine.
- Breathalyzer Inspection Certificates
STATE v. SANDSTROM (App. Div. 1994) evidence of blood alcohol level of .14% was
admissible, even though breath analysis machine had not been certified within
previous 30 days, and machine was found to be inoperable 13 days after test was
conducted on defendant.
Bi-monthly inspections were all that was required to insure the instrument was
in proper working order.
STATE v. SAMAREL (App. Div. 1989) Although presenting at trial a post-test
certification that a breathalyzer is in proper working order is the preferred
practice, a test result may be admissible without a post-test certificate if
there is a pre-test certification made within a month before the test that the
machine was in proper working order and there is no evidence that the machine
gave inaccurate results when used for the test.
(Samarel does not purport to
establish an absolute outside time limit for the validity of a pre-test
inspection certificate. There is no one month limitation on the validity of a
pre-test inspection certificate. Admittedly, a pre-test inspection certificate
done too far in advance of the administered test may run the risk of being
labeled stale on a record which could support such a finding.)
- Breathalyzer (Simulator Solution)
In State v. Maure, 240 N.J.Super. 269, 275-277, 573 A.2d 186 (App.Div.1990),
aff'd o.b., 123 N.J. 457, 588 A.2d 383 (1991), Judge Baime explained the
function of the simulator solution in testing the machine and its relationship
to the ampoule used in the administration of the breathalyzer test.
The test
ampoule is a sealed cylinder containing the chemical solution of potassium
dichromate, silver nitrate, and sulfuric acid whose reaction with alcohol vapor
is the basic predicate of the breathalyzer's operation.
In the actual
performance of the breathalyzer test, the subject blows into the machine, and
if there is alcohol vapor in his breath, it will react with the potassium
dichromate in such a way as to fade the color of the solution. The shades of
color are detected by a photoelectric cell which transmits that information for
translation into the meter reading.
The paler the color, the higher the
breathalyzer reading. Key to the proper operation of the machine, therefore,
is the proper constitution of the chemical solution in the ampoule.
In order to
assure the chemical accuracy of the ampoules used in the breathalyzer process,
they are required to be certified by an independent testing laboratory. The
laboratory procedure is to randomly test twenty-five of the ampoules of each
batch made by the manufacturer, a batch consisting of 25,000 ampoules.
A copy of
the laboratory's assay certificate, issued when it is satisfied that the test
ampoules meet the required chemical standards, accompanies each box of twenty-
five ampoules from the same batch sent by the manufacturer to the ultimate user.
Thus the ampoules have already been certified both when they are used in the
required periodic testing of the machine by the State Police coordinator and in
administering the actual breathalyzer test. As part of the procedure followed
during the inspection, the coordinator tests the machine by using a simulator
solution instead of the test subject's breath.
As Judge Baime explained, the
simulator solution has an actual alcohol content of .12, producing an alcohol
vapor of .10. The breathalyzer machine is regarded as being in proper working
order when introduction of the simulator solution into the machine in which an
ampoule has already been placed produces a reading of .09 to .105.
The reason
for this range, required by applicable guidelines, is to account for "a
potential variance of . 005 attributable to alcohol depletion [of the simulator
solution] with successive testing." 240 N.J.Super. at 277, 573 A.2d 186.
Finally, as described by Maure, the simulator solution is "maintained at a
constant temperature and, by way of an agitator, kept at an appropriate
homogeneous concentration...." Id. at 276, 573 A.2d 186. The certificate of
inspection given by the coordinator attests to the proper performance of the
inspection procedures.
- Discovery (Admissibility)
STATE v. MATULEWICZ (App. Div. 1985) state police chemist's laboratory report
identifying controlled dangerous substance as marijuana was inadmissible under
public-records exception to hearsay rule where chemist was not produced as a
witness.
- Discovery Provided by the State
STATE v. YOUNG (App. Div. 1990) production of ampoules from the same batch used
in defendant's breathalyzer tests is not to be ordered as a part of routine
discovery.
STATE v. FORD (NJ 1990) Defendants' discovery in DWI cases is limited to those
relevant items, enumerated by statute, which there is reasonable basis to
believe will assist defendant's defense; furthermore, court is permitted for
good cause shown to limit discovery even if otherwise discoverable. State is
not routinely required to supply defendants with manuals for operation of
breathalyzer used, as defense counsel seeking such manual may inspect or copy
it through arrangements with prosecution under rule, thereby having the manual
for general use in the attorney's practice.
For purposes of production in DWI cases, requiring routine production of entire
repair record for breathalyzer instrument or video equipment, or coordinator's
certificate or similar documents without appropriate time limitations would be
unreasonable; 12-month limitation should ordinarily suffice.
Under general demand for discovery in DWI case, State should provide full
identification of breathalyzer used, date it was first placed in service by
State, type of breathalyzer used, including manufacturer, model number and
results of coordinator's testing of breathalyzer for approximately one year to
include next testing after defendant's test, time of administration of test,
and results and all reports and relevant documents signed by defendant or
pertaining to his condition of sobriety including blood and urine tests.
Drinking After Operation of Vehicle ("Glove Box Defense")
STATE v. SNYDER (App. Div. 2001) held that evidence supported conviction,
despite claim that defendant's breath test did not accurately reflect his
alleged post-operation drinking. (Evidence supported conviction for operating
motor vehicle under influence of alcohol, where defendant parked his vehicle
and drank whiskey from bottle that he kept in his car, so that breath test at
police station thus did not accurately reflect his level of intoxication when
he drove; defendant had admitted to drinking during previous three hours at
tavern, he was either unaware or unconcerned that he had backed into another
car, and he did not mention to officer that he had consumed more alcohol before
test.)
- Error on Ticket
STATE v. LATORRE (App. Div. 1988) DWI summons which lacked signature of issuing
officer was not fatally defective, where defendant received ample and fair
notice of nature of charge against him and obviously was aware of when and
where alleged violation occurred.
STATE v. RYFA (Law Div. 1998) Summons issued erroneously listed place of
offense as town of West Orange, even though offense occurred in East Orange.
Court rules gave municipal court power to both amend complaint and transfer
jurisdiction, and correction of error neither prejudiced defendant nor created
potential for double jeopardy.
- Evidentiary Issues
STATE v. GARTHE (NJ 1996) breath test inspector's inspection certificates
(BTIICs) are admissible in DWI trials, subject to rules governing business or
official record exceptions to hearsay rule.
- Horizontal Gaze Nystagmus test (HGN)
STATE v. DORIGUZZI (App. Div. 2000) horizontal gaze nystagmus test (HGN) is a
scientific test which must meet scientific standards of admissibility. That
was not demonstrated in this matter, and HGN testimony was disallowed.
- Involuntary Intoxication
STATE v. HAMMOND (NJ 1990) involuntary intoxication is not a defense to drunk
driving charge.
- Jury Trial
The New Jersey Supreme Court has expressly rejected the argument that a
defendant facing conviction as a third time offender of N.J.S.A. 39:4-50 is
entitled to a jury trial. State v. Hamm, 121 N.J. 109, 111, 577 A.2d 1259
(1990), cert. denied, 499 U.S. 947, 111 S.Ct. 1413, 113 L.Ed.2d 466 (1991)
STATE v. ELLIS (NJ 1990) offenses were not constitutionally "serious," and
thus, no jury trial was required.
- Miranda - Rights Requirement
STATE v. NEMESH (App. Div. 1988) Inquiry by officer upon his arrival at scene
of accident as to who was operating involved vehicle is not custodial
interrogation, for purpose of requirement of Miranda warnings.
- Miscellaneous (Promise to Dismiss)
STATE v. MARSH (App. Div. 1996) a municipal police officer has no authority to
bargain with "offenders against the laws" and, thus, has no power to promise
dismissal of a pending DWI charge.
- Operation of Vehicle
STATE v. GARBIN (App. Div. 1999) officers were justified in entering
defendant's garage in performance of their community caretaking functions, and
defendant could be convicted based on operation of vehicle in garage of private
residence.
STATE v. MULCAHY (NJ 1987) held that a man, clearly drunk, who entered his car,
started to put his keys in the ignition and was prevented from doing so by an
arresting officer, was operating the car.
STATE v. DiFRANCISCO (Law Div. 1988) Evidence that defendant was found slumped
behind steering wheel of truck which was sitting partially in ditch, with the
keys in the ignition and the engine warm, was insufficient to permit inference
that defendant had driven the truck while intoxicated.
STATE v. SWEENEY (NJ 1973) the Court sustained the conviction of a person who,
in an intoxicated condition, 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.
STATE v. DALY (NJ 1973) emphasized the State's burden to prove "intent" to
drive. Daly was found seated in the driver's seat of an automobile parked in
the parking lot of a tavern. He was intoxicated and asleep; the car lights were
off but the motor was running. He told the arresting officer that he had no
intention of driving and had started the car only to keep warm.
He testified
that he was "sleeping off" his intoxication. The Court held that the proofs did
not show that he was "operating" his car: "In the instant case, defendant
denied any intent to move or drive his car until he had sobered up and,
contrary to the State's contention, there was no evidence from which any such
intent could be inferred beyond a reasonable doubt."
STATE v. STIENE (App. Div. 1985) defendant's DWI conviction was sustained on
proof that he had been pushing a car along a highway while intoxicated.
- Physical Testing - No Breath Testing
STATE v. OLIVERI (App. Div. 2001) Defendant can be convicted of DWI without
Breathalyzer testing in this case, where officer testified that defendant's
eyes were watery and speech was slow and slurred, he had to make a few requests
for defendant to exit vehicle, defendant admitted drinking two beers, when
asked to walk heel-to-toe for nine steps up and nine steps back, defendant took
15 steps up and 19 steps back without touching heel-to-toe, had difficulty with
one-legged stand, miscounted by thousands from 1,000 to 30,000, and when
attempting to recite alphabet from D to S, went to V and missed several letters
in between.
- Plea Negotiations
STATE v. HESSEN (NJ 1996) discusses the absolute ban against plea negotiations
in all drunk driving cases in municipal court.
- Points (Insurance) Assessed for DWI
DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES v. BIGHAM (NJ
1990) motorists convicted of violations for which motor vehicle points are not
authorized can still receive surcharges where no point offenses pose direct
threat to safety.
- Probable Cause - Blood Testing
STATE v.O'LOUGHLIN (App. Div. 1994) Observation of driver upon arrival at
hospital and two empty party cups and two crushed beer cans in her car did not
provide probable cause for involuntary seizure of her blood; driver
demonstrated no evidence or physical manifestation of having consumed alcohol.
- Probable Cause To Stop
STATE v. CRYAN (App. Div. 1999) stopping defendant because he failed to
proceed for five seconds after a red light turned green was not justified on a
community caretaking basis.
STATE v. LOCURTO (App. Div. 1997) State failed to prove that police officer had
articulable and reasonable suspicion that driver was speeding to justify stop
of automobile, despite officer's testimony that defendant's vehicle was
traveling at high rate of speed in opposite direction based solely on his
impression, where officer's testimony was too vague, speculative and arbitrary,
defendant claimed that he was travelling at speed limit, defendant's testimony
was more credible based on court's mathematical calculations, no summons was
issued for speeding, and careless driving summons was not issued until after
driving while under influence (DWI) summons had been issued.
STATE v. WASHINGTON (App. Div. 1997) police officer had objectively reasonable
basis to stop defendant's automobile, pursuant to community caretaking
function, when defendant was driving under speed limit and vehicle was weaving.
- Refusal to Perform Field Sobriety Test
STATE v. BRYANT (App. Div. 2000) A motorist's refusal to perform any field
sobriety tests may be considered in a prosecution for driving while under
influence (DUI) as evidence of his intoxication.
- Refusing to Take Breath Test
Breath samples are a nontestimonial form of evidence. State v. Macuk, 57 N.J.
1, 14, 268 A.2d 1 (1970). Accordingly, a defendant does not have a Fifth
Amendment right to consult with an attorney before taking the test, nor does a
defendant have a right to have an attorney present when the test is performed.
State v. Leavitt, 107 N.J. 534, 536, 540, 527 A.2d 403 (1987).
STATE v. DiSOMMA (App. Div.1993) Prior violation of statute prohibiting refusal
to take breathalyzer test could not serve as first offense for purposes of
second offender status for driving while under the influence; offenses of
driving while under the influence and refusal to take breathalyzer test were
not the same or interchangeable violations.
STATE v. WIDMAIER (NJ 1999) For purposes of implied consent statute, once a
defendant says anything except an unequivocal "yes" to the officer's request
that he take breathalyzer test, after the officer has informed the defendant of
the consequences of refusal, the defendant cannot legally cure the refusal.
- Roadblock
STATE v. FLOWERS (Law Div. 2000) roadblock to check for stolen vehicles did not
violate the Fourth Amendment.
STATE v. HESTER (1990 App. Div) sobriety roadblock is not required, as a
condition of its constitutionality, to provide opportunity for motorists to
avoid checkpoint or refuse to participate, and assuming initial stop of
motorist was lawful upon motorist's making of U-turn about 300 to 400 feet
before sobriety checkpoint, detention of motorist while computer check was run
on driving credentials was not more than "minimal."
- Sentencing Issues
STATE v. FIELDING (App. Div. 1996) the last of Fielding's two prior DWI
convictions occurred in 1981, more than ten years before the present charges.
Pursuant to N.J.S.A. 39:4-50(a), the imposition of enhanced penalties for those
previously convicted of DWI does not apply "if the second offense occurs more
than 10 years after the first offense."
In that situation, "the court shall
treat the second conviction as a first offense for sentencing purposes."
N.J.S.A. 39:4-50(a).
However, the statute goes on to provide that, "if a third
offense occurs more than 10 years after the second offense, the court shall
treat the third conviction as a second offense for sentencing purposes." Ibid.
Thus, had Fielding consented to a breathalyzer test and been convicted for DWI,
he would have been treated as a second offender because his second DWI
conviction occurred in 1981.
STATE v. LAURICK (NJ 1990) prior uncounseled DWI conviction could be used to
establish repeat offender status for purposes of enhanced penalty provisions,
as long as defendant did not suffer increased period of incarceration as a
result of Rodriguez violation that led to uncounseled DWI conviction, and other
post conviction relief from effect of prior uncounseled conviction must be
sought in court of original jurisdiction and is available upon showing of
denial of fundamental justice or other miscarriage of justice.
- 60 Day "Rule"
The New Jersey judiciary is, as a matter of policy, committed to the quick and
thorough resolution of DWI cases. In 1984, Chief Justice Wilentz issued a
directive, later echoed in Municipal Court Bulletin letters from the
Administrative Office of the Courts, that municipal courts should attempt to
dispose of DWI cases within sixty days. See State v. Fox, 249 N.J.Super. 521,
523 & n. 1, 592 A.2d 665 (Law Div.1991); State v. Perkins, 219 N.J.Super. 121,
124, 529 A.2d 1056 (Law Div.1987).
- Speedy Trial
STATE v. FARRELL (App. Div. 1999) inexcusably extensive delay in prosecuting
charges to completion, that being 633 days from issuance of summons through 13
noncontiguous, widely-spaced court sessions, violated defendant's right to
speedy trial.
- Surcharges
WNUCK v. NEW JERSEY DIVISION OF MOTOR VEHICLES (App. Div. 2001) non-resident
driver convicted of DWI in New Jersey is subject to insurance surcharge, even
though he is not licensed in New Jersey.
- Video
STATE v. MAIDA (App. Div. 2000) police department had no duty to videotape
defendant at police headquarters.
STATE v.MANFREDI (Law Div. 1990) expert testimony regarding defendant's
videotaped behavior was inadmissible for purpose of contradicting results of
otherwise reliable breathalyzer test.
- Warrant Requirement
STATE v. BOLTE (NJ 1989) officer, in hot pursuit of person suspected of
numerous motor vehicle and disorderly persons offenses, could not make
warrantless entry into suspect's home to effect arrest.