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A Defense Overview

A Defense Overview of DWI In New Jersey

By Greggory Marootian, Esq.

There is a widespread misconception that a charge of New Jersey DWI (N.J.S. 39:4-50) cannot be successfully defended. I continue to be amazed by clients who contact me and are persuaded after speaking to other attorneys, that is no way to defend a New Jersey DWI charge. I am also shocked at Defendants who plead guilty with counsel who has either not thoroughly analyzed discovery, or worse, not even requested or examined the State’s case at all.

While a DWI charge in New Jersey presents a complex and unique challenge, through zealous and creative advocacy, viable and successful defenses can be raised. The defense of a NJ DWI charge has far too many wrinkles to address in one article. I will attempt, in this article, to provide a basic and general overview of the alcohol-related (as opposed to a drug-related) NJ DWI charge.

N.J.S. 39:4-50 (the NJ DWI Statute) makes it unlawful to “operate a motor vehicle while under the influence of intoxicating liquor … or … with a blood alcohol concentration of .08% or more by weight of [blood] alcohol.”

The New Jersey DWI Statute creates in effect two distinct and separate offenses; (A) operating a motor vehicle while “under the influence of intoxicating liquor,” and (B) operating a motor vehicle with a “blood alcohol concentration of .08% or more.”

Under the influence has been defined generally as a Defendant who has consumed alcohol “to the extent that his physical or mental faculties are deleteriously affected.” State v. Emery, 27 N.J. 348, 355 (1958). It has also been defined as a “substantial deterioration or diminution of the mental faculties or physical capabilities of a person.” see State v. Tamburro, 68 N.J. 414, 421 (1975).

Under the second prong of the Statute, a Defendant who operates a motor vehicle with a blood alcohol concentration of .08% or more is guilty no matter how the alcohol affected him. This (offense) is referred to as a “per se” offense (“Per Se” is Latin for “by itself”).

The most common blood alcohol concentration (BAC) evidence will be in the form of a breath reading. The chemical analysis performed by the breath testing device converts breath alcohol to a blood alcohol concentration reading. Less common is a direct blood draw and thus laboratory evidence of the BAC.

Courts may take judicial notice of the general scientific reliability of the breath-testing device currently used in New Jersey, the “Alcotest.” In 2003, New Jersey began phasing out the “Breathalyzer” and currently, every police department uses the “Alcotest” as a breath-measuring (blood alcohol concentration) device.

In 2008, the New Jersey Supreme Court decided the landmark case of State v. Chun, 194 N.J. 54 (2008). The Court ruled that the Alcotest was a scientifically reliable instrument. The Court instructed that the State must, however, establish that “(1) the device was in working order and had been inspected according to the procedure; (2) the operator was certified; and (3) the test was administered according to official procedure.”

When a Not Guilty Plea is entered, police reports, videotapes, and relevant Alcotest records must be requested from the State pursuant to New Jersey Court Rule 7:7-7. The request should be sent to the Municipal Court Prosecutor (not the Court Administrator).  “Preparation of the State’s case is clearly a prosecutorial function and is a responsibility that cannot be shifted to others.” State v. Prickett, 240 N.J. Super. 139, 145 (App. Div. 1990); see also N.J.S.A. 2B:25-5(a) “A municipal prosecutor shall be responsible for handling all phases of the prosecution of an offense …”

If the State’s response is lacking, the defense should put the State on notice by way of a Motion to Compel Discovery. State v. Holup, 253 N.J. Super. 320, 325-326 (App. Div. 1992); State v. Ford, 240 N.J. Super. 44, 52 (App. Div. 1990).

7:7-7(b) entitles the defense to the following “discovery”:  (1) books, tangible objects, papers or documents obtained from or belonging to the defendant, (2) records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded, (3) grand jury proceedings recorded pursuant to R. 3:6-6 (4) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies of these results or reports, that are within the possession, custody or control of the prosecuting attorney, (5) reports or records of defendant’s prior convictions, (6) books, originals or copies of papers and documents, or tangible objects, buildings or places that are within the possession, custody or control of the government, (7) names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information, including a designation by the prosecuting attorney as to which of those persons the prosecuting attorney may call as witnesses, (8) record of statements, signed or unsigned, by the persons described by Subsection (7) of this rule or by co-defendants within the possession, custody or control of the prosecuting attorney, and any relevant record of prior conviction of those persons, (9) police reports that are within the possession, custody or control of the prosecuting attorney, (10) warrants, that have been completely executed, and any papers accompanying them, as described by R. 7:5-1(a), and (11) the names and addresses of each person whom the prosecuting attorney expects to call to trial as an expert witness, the expert’s qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of the expert witness, or if no report was prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

In State v. Chun, 194 N.J. 54, 153 (2008), the Court Ordered the State to turn over what they referred to as “twelve [Alcotest] foundation documents” as follows: (1) New Standard Solution Report of the most recent control test solution change, and the credentials of the operator who performed that change, (2) Certificate of Analysis for the 0.10 percent solution used in that New Solution Report, (3) Draeger Safety Certificate of Accuracy for the Alcotest CU34 Simulator, (4) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe,(5) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Instrument, (6) Calibration Records, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration, (7) Certificate of Analysis for the 0.10 percent solution used in the calibration control test, (8) Certificate of Analysis for the 0.04, 0.08, and 0.16 percent solutions used in the calibration linearity test, (9) New Standard Solution Report, following the most recent calibration, (10) Draeger Safety Certificates of Accuracy for the Simulators used in calibration,(11) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe used in calibration, and (12) Draeger Safety Ertco-Hart Calibration Report. While not delineated in the twelve “foundation documents,” the State should also turn over for inspection the Alcotest Operator’s credentials (to operate the Alcotest).

Examination of discovery regarding the operation and results of the breath-testing device can be referred to outside experts for consultation and analysis. There are some areas of potential deficiency that can be gleaned by defense counsel. For instance, the Alcotest operator’s credentials should be reviewed to determine if the operator was properly certified at the time of the test. The State Police must calibrate the Alcotest every six months. The Alcohol Influence Report (the printout from the Alcotest) will reflect the last calibration of the instrument. The multiple components of the Alcotest and those used during the calibration should be reviewed to determine whether their separate calibrations have lapsed. There are numerous safeguards outlined in the case of State v. Chun and the preceding Special Master’s Reports. Defense counsel should conduct a careful review of the case and report(s) to comb for these procedural defects.

Some Police Departments videotape the DWI Defendant in the field (i.e. during the stop), and at the police station. If a videotape exists, arrangements should be made to obtain a copy. If the State is unable to provide a duplicate copy of the video, arrangements should be made to review the tape(s) for possible defense (trial) issues.

Assuming that the Alcotest results can be excluded or compromised, the State may still seek to prosecute on what is commonly referred to as “observation” evidence (that the Defendant was “under the influence”). The “observation” evidence consists of the driving, the defendant’s appearance and demeanor, and field sobriety tests. The Police Officer(s) will generally testify regarding observations of the Defendant before and after the arrest (these can include: erratic driving, flushed face, bloodshot eyes, speech pattern, boisterous demeanor, the odor of alcoholic beverage on breath, hand movements, leaning, swaying, etc.). The Officer(s) will also testify regarding the Defendant’s performance on Field Sobriety Tests (E.G., heel to toe, finger to nose, one-leg stand, recitation of the alphabet, counting backward, etc.).

There might be factors that could have caused the observations and poor performance on the psychophysical tests, each having nothing to do with the consumption of alcohol. The observations and field tests should be scrutinized and screened to prepare for creative and effective cross-examination at trial. For example, a flushed face (i.e. red face) is often the result of nervousness, bloodshot eyes may be the result of allergies, fatigue or irritants, poor balance may be the result of a medical condition, or as if often the case, the improper administration of the tests by the officer. Some field sobriety tests are simply not scientifically validated to assess for impairment and may induce failure in sober people. Experts should, if warranted, be consulted and retained to address the State’s observation case.

The National Highway Traffic and Safety Administration of the United States Department of Transportation (NHTSA) recognize only three Field Sobriety Tests as reliable scientific indicia of intoxication. The Standardized Field Sobriety Test (SFST) Battery consists of (1) The Horizontal Gaze Nystagmus (HGN), (2) The Walk and Turn, and (3) The One Leg Stand. These three tests are regarded as reliable in evaluating alcohol impairment, provided, however, they are properly administered and interpreted. January 25, 2005, New Jersey Attorney General Guidelines for Prosecuting DWI Violations states that “For those officers with the requisite training, they will generally employ the Standard Field Sobriety Testing [SFST] methods …”

In United States v. Horn, 185 F.Supp.2d 530, 538 (D.Md.2002), United States Magistrate Judge Grimm found that the SFSTs are valid: “[o]nly when … administered in the prescribed, standardized manner; and only when the standardized clues are used to assess the suspect’s performance; and only when the standardized criteria are employed to interpret that performance. If any one of the standardized field sobriety test elements is changed, the validity is compromised.” Id. at 538 (citing the NHTSA Student Manual).

Penalties arising from a NJ DWI conviction vary depending on whether the Defendant’s conviction is a first, second, or subsequent offense, and whether the breath reading is between .08% to .10% or above .10%. The revocation of the Defendant’s driver’s license in New Jersey is mandatory for the prescribed minimum period(s). Unfortunately, the revocation is absolute; New Jersey does not allow for a work or conditional license.

In addition to Court imposed penalties, the New Jersey Motor Vehicle Commission (NJ MVC) will impose a surcharge of $1,000.00 for three consecutive years unless there was a prior conviction within three years in which case the surcharge is $1,500.00 a year. Further, a conviction for DWI results in cancellation of car insurance – forcing the client to obtain insurance through the assigned-risk (high-risk driver) plan.

If a Defendant is facing enhanced penalties as a subsequent offender, defense counsel should review the prior conviction(s) to determine whether the prior conviction was counseled and if not, whether the Defendant made an adequate waiver of counsel. If the conviction was uncounseled coupled with an inadequate waiver, that conviction might not be used to enhance the period of incarceration which attaches for a convicted second or third offender (although the other enhanced penalties may be imposed) see State v. Laurick, 120 N.J. 1 (1990). Counsel should obtain a copy of the ticket, the court’s file, any available discovery, and the transcript in connection with the previous conviction(s). If the prior plea (or guilty finding) was through counsel, the file and transcripts should be reviewed to determine the viability of a Post-Conviction-Relief (PCR) Application to vacate the plea or verdict.

Defense Counsel should be cognizant that “No plea agreements whatsoever [are] allowed in drunken driving … offenses.” see Appendix to Part VII  Court Rules, Guideline 4. The exception is that a Prosecutor can recommend dismissing a Refusal to Submit Charge in exchange for a plea on the DWI charge if the Refusal charge constitutes a second offense under the statute. The other exception is where the State cannot prove their case beyond a reasonable doubt. In that case, a Prosecutor is duty-bound to dismiss the DWI charge or amend it to conform to the proofs.

There is no right to a Jury Trial for DWI offenses. See State v. Hamm, 121 N.J. 109 (1990). Lastly, in 1984, the late Chief Justice Wilentz mandated a 60-day arrest to disposition goal on all DWI cases in New Jersey, which most Municipal Courts assiduously seek to achieve. Defense counsel must, accordingly, be particularly diligent in preparing the defense as Judges are placed under a tremendous amount of pressure to move DWI cases. Defense counsel should respectfully attempt to work with the Court Staff, Prosecutor and Judge to the extent possible, in moving along a DWI case, and scheduling the case for disposition.

The NJ DWI charge has become increasingly complex and difficult to defend in New Jersey, and the penalties are harsh. Counsel should not, however, assume that a DWI charge cannot be defended, even if a high BAC reading is alleged. Advising a client to plead guilty without thoroughly examining the State’s case is a recipe for a malpractice claim. Through careful and diligent analysis and the selective use of qualified experts, a successful defense to a DWI charge is possible.