Category Archives: DWI OFFENSES

Governor Conditionally Vetoes Bill Changing DWI Sentencing

The Governor returned a bill to the Senate which would have drastically changed DWI sentencing in New Jersey if passed. The Bill called for, inter alia, the imposition of an ignition interlock system in lieu of license suspension for first conviction for DWI.

The Bill contained provisions that called for a ten-day suspension to show compliance with the installation of the interlock. Once the device was installed, the license would be reinstated. The sentencing judge would then have discretion (to some extent) to impose the interlock for a longer or shorter period of time depending on the circumstances.

The Bill was returned to the Senate with a suggestion from the Governor….How about we impose both a license suspension and an ignition interlock?

The Governor cited statistics that indicate that New Jersey is amongst the nations best when it comes to DWI related fatalities and enforcement, but still in need of improvement.

The current law mandates license suspension, but the ignition interlock is only required for first offense with a B.A.C. of .15 and above, or for a second and third offense.

It is clear to me that the new law would have been better for those facing DWI charges. The prospect of losing your license in New Jersey is pretty daunting. A change in the law that would allow you to  keep it certainly seems like a good thing for those facing the problem.

But for now, things remain the same. If you have any questions regarding this decision or DWI charges in general, I can be reached 24 hours.

 

Advertisements

When Driving with a Suspended License Becomes a Crime

There are many circumstances that will lead to an individual being charged with an indictable driving while suspended offense. One of the frequent is being charged with driving while suspended on more than one occasion when your license is suspended for DWI. You may also face this charge when you are suspended for your second or subsequent DWI offense and receive a ticket for driving during a period of revocation or suspension.

However, you may not know that you are facing this consequence until you arrive in the municipal court to answer the charge. It is usually at that time that you are told that your case is being transferred to the county for review.  The p0lice officer will not hand you a criminal complaint, just a ticket.

Although defendants are supposed to be made aware of these consequences during the sentencing in connection with the DWI offense, many times courts will forget to do so. Other times people just forget.

Regardless, if your case is transferred and remains in Superior Court, a conviction will mean a mandatory 180 day jail sentence. That time must be served day for day.

I represent people facing this problem, and in many instances I am able to avoid this penalty. In some cases, I was able to retrieve court transcripts from prior DWI convictions and show that the defendant was not properly warned of this penalty. In other cases, I was able to convince the county prosecutor to remand the case to  the municipal court and treat it as a traffic offense.

Interestingly enough, the Appellate Div. just held that a lawyer is not under any  obligation to tell the municipal court about this potential issue. Meaning, if asked, the defendant must tell, but if not, then no.  This can be helpful if the prosecutor or judge does not address the issue, but it  is far from a guarantee.

Even for a first offense DWI and first offense driving while suspended you face a mandatory ten days in the county jail and an additional 2 year loss of license.

Given the amount of county jail time one faces, it really is in your best interest to contact a lawyer if you have a question about this.

DWI Related Offenses and Factors for Sentencing

Driving While Intoxicated – First Offense

Under the law, it is illegal for a person to operate a motor vehicle while under the influence of an alcoholic beverage, or some type of narcotic, habit producing drug, or operate a vehicle with a blood alcohol concentration of 0.08% or greater. It is also illegal to allow someone else to operate your vehicle in the above state. If one is charged with DWI as a first offender, there are different tiers of sentencing, depending on the percentage of your blood alcohol concentration.

Tier One: You have a BAC (blood alcohol concentration) of less than .10%, or there is no reading because you refused or the State is unable to prove that the machine was in proper working condition. Here you will face a 3 month suspension of your driving privileges, a $250.00 to $400.00 fine as well as other State imposed monetary penalties. Also a 12 to 48 hour sentence in the IDRC (intoxicated driver resource center) will be imposed. In addition, you face the possibility of interlock device installation being required and up to 30 days imprisonment.

Tier Two: If you have a result of over .10 and the State is successful in their prosecution, you are subject to second tier penalties. You’re driving privileges will be suspended from 7 months to 1 year. You will have to spend 12 to 48 hours in IDRC and again will be subject to fines as well as surcharges from DMV and your insurance company. If your reading is higher than a .15, the additional penalty of having to install an interlocking device in your vehicle will apply.

– Second or Third Offense

If this is your second or third offense for DWI in New Jersey, the tier system does not apply. If you are convicted of DWI as a second or third offender, you will lose your privilege to drive in New Jersey as well as face jail time (mandatory for third offense) and fines. There are also collateral consequences that apply to a conviction for a second or third offense DWI.
Miranda Rights

– It is a common thought among those charged with DWI that because they were not read their Miranda Rights, the case should be dismissed. Miranda Rights only apply in something called a custodial interrogation. This means that you are not free to leave. While most people feel that they cannot just get in their car and drive away, the courts have found that most of the questions the police ask of a person occur before the person is technically in custody. Unfortunately what this means, is that the questions that occur at roadside are not considered custodial and therefore the police are under no obligation to provide you with your Miranda Rights.
Aggravating Factors at Sentencing for DWI

– There are certain factors that can enhance a sentence for DWI. A refusal to submit to the breath test; driving in a school zone; having an extremely high blood alcohol content; causing injury to someone; driving extremely recklessly; having prior DWI’s, driving on the revoked list due to a prior DWI; or even having a child in the car are just some to name a few. If any of the above circumstances were present, the prosecutor is entitled to ask for increased fines; license loss; and jail time.

Underage DWI

– If you are under 21 and drive with any amount of alcohol in your system (.01) you can be charged with an underage DWI. The penalties for a baby DWI as they call it are a 30 to 90 days license loss, participation in IDRC and 15 to 30 days of community service. If your blood alcohol content reaches the level of .08 and above you become subject to the penalties of an adult DWI.

Vehicle Checkpoints

– In a situation where you drove through a vehicle checkpoint, there are strict guidelines that must be followed. For example, the checkpoint must be announced to the public in advance and not allowed to be set up by the field officers. In addition, cars must be stopped in a random and neutral pattern as well as done in a safe and efficient manner.

Plea Bargaining

– Unfortunately, there is no plea bargaining DWI cases in the State of New Jersey. It is acceptable for the prosecutor to make certain sentencing recommendations to the Judge, but he can’t recommend dismissal or lowering the time of license suspension unless the defense lawyer has a good legal argument to put on the record. Absent that, in a case where it is a first offense and the possible license loss is anywhere from 7 to 12 months, the prosecutor may recommend to the Judge that he only sentence you to the minimum of 7 months. Also, it is possible for the prosecutor to move to dismiss some of the other traffic infractions you might have received in connection with the DWI. But to reiterate, a downgrade or dismissal only occurs when your lawyer makes a convincing legal argument.

 

DWI Charge Dismissed and Client Pleads to Reckless Driving

I appeared in a south Jersey municipal court this afternoon for a DWI trial date. I arrived about half hour early to discuss the matter with the prosecutor and judge.

Prior to this date a had successfully argued to have the Alcotest readings suppressed (couldn’t be used as evidence against my client). This put us in a much better position because the readings were fairly high (.15 BAC). At that BAC level my client was exposed to the higher level of penalties for a first offense. This included the ignition interlock and up to a year loss of license.

There were also some aggravating factor (motor vehicle accident with another car).

Given the facts of the case, the state was willing to proceed with the DWI charge as an observation case. This includes everything else other than the Alcotest readings, including performance on the field sobriety tests,  the manner of driving,  speaking,  appearance,  admissions of drinking,  smell of alcohol etc.

This is a perfectly valid way for the state to prove its case and in fact most DWI trials boil down to the observations if the readings are suppressed. The penalties for a conviction for an observation offense are not as harsh. Monetarily they are the same but the max on the license suspension is three months if it is a first offense. Most times I go to trial if the readings are kicked pre-trial, but it really depends on the case.

Interestingly enough, my client was licensed in another state. This fact played into my strategy. Just about every state is a party to the interstate driver compact. This means that most states will take action against your license even if you get the ticket or charge in another state. The question is what kind of action?

For example if you live in state A, state B can only suspend your privilege to drive in state B. State A can take separate action against you and may suspend your license in state A, but it depends. Also in most states,  New Jersey excluded, the DMV will allow for a provisional license no matter the nature of suspension. However, this may not be the case for Dwi convictions.

Why does this matter? Here is why. I did my research and spoke to my client. First, a DWI conviction in News Jersey costs upwards of five grand in fines and surcharges. Second,  if he was convicted of DWI in this state or any other he would lose his job. Third, he doesn’t ever drive in New Jersey. It was a fluke. Third, the only way New Jersey suspension could hurt him in his state would be if it was because of a Dwi conviction. A suspension for a conviction for just about any other motor vehicle infraction would likely not result in a suspension in his state.

Putting this all into the calculator this is what you get. How long Nj suspended his license was unimportant. What mattered was the nature of the conviction. Meaning if there was a way to get rid of the Dwi without having to take a chance at trial then it was a no brainer.
The prosecutor didn’t know any of the background. My offer to the state was dismiss the Dwi, the defendant pleads guilty to reckless driving.

This offer was not appreciated at first,  but as the day went on and the state had the time to review my arguments and the strength of its case, the prosecutor came around with one minor modification. A short loss of driving privileges in Nj. Who cares? No trial where the outcome would be uncertain. No loss of job. No loss of driving privileges in the places he had to drive. No 5k in penalties. He won’t even get the points in his home state. And I got the DWI dismissed pre-trial. Not an easy thing to do.

DWI Procedure in Municipal Courts

Common Questions About How Municipal Courts Deal with DWI Cases

When I am first contacted by a new DWI client, many of the questions he or she may have pertain to how the municipal court handles the case. Do I have to go to my first court date? How long will the case take? Do I have to go and get the police report? Will the judge ask me any questions?

This post will hopefully shed some light on how most municipal courts will handle the matter. I say most because not every court is the same. I have been in hundreds of municipal courts throughout the state and they all do it a little differently.

DWI First Appearance Date

I good starting point is the DWI ticket. If you look at that ticket you will see towards the bottom of the summons a first appearance date listed. This is your first court date and it is a required appearance. The only exception would be if you hire an attorney and the court allows your lawyer to enter your not guilty plea via your lawyer’s letter of representation. Some courts allow for this and it saves you hours of inconvenience. If you don’t have a lawyer, or the court does not waive the first appearance with your attorney, then you must appear. I would strongly suggest contacting the court to verify the first appearance date. Municipal Courts are famous for saying one thing and doing another.

If you don’t have a lawyer, you will go to your first date and probable wait and wait and wait (if you have one, the waiting is reduced dramatically). When you get to the court, you may or may not have to check in. This could happen in the court or at the violations window, depends on the court.

Once you are in court, you will wait for the judge to call your case. What should happen is this: The judge will call you up. He or she will tell you what you have been charged with and may explain the enhanced penalties if you are facing a second or third offense. The court does not know if you have been previously convicted, the judge just explains the penalties. After this the court will ask you if you plead guilty or not guilty. Remember, no one has every one a case or had a chance to win a case by pleading guilty at the first court date.  Neither will you. You don’t know what your defenses are or may be. Don’t plead guilty.

The next question will be “do you want to hire a lawyer or apply for a public defender?” You will not get a public defender unless you qualify financially. This means you will have to fill out a form that lists all of your financial information and the judge will make a determination as to whether you qualify. If you hire private counsel, like me, you will want a lawyer who knows how to win DWI cases. I am one of a few lawyers in the State who has the sort of qualifications you will want…certified in the administration of the field sobriety tests by NHTSA, certified by Drager in the Alcotest instrument maintenance and procedure, trial victories, etc.

Once you plead not guilty you will get a new court date, typically about thirty days out.

Timeline for DWI Trial or Resolution

DWI cases are supposed to be resolved in 60 days. The courts use this timeline according to how the case is going. If the State is having a hard time getting its act together, the timeline seems to more flexible than if the defendant is lagging. Regardless, this is just a guideline and not a bright-line rule.

Discovery Process

From the time that you hire a lawyer or receive a public defender, the discovery process begins. Your lawyer gets the discovery, not you. This includes the police reports. This is where it really pays to have private counsel in my opinion. The discovery process in a DWI case is really important. Many cases are won or lost during this time. Obtaining all the discovery, including reports, certifications, videos, audio recordings etc., can take lots of time. More importantly, if the state does not provide it or parts of it there are rules in place that an experienced attorney can use to move for a dismissal or for a suppression of important pieces of evidence, like the Alcotest reading.

Pre-trial Conference

There may be one or many, it depends on the course the case takes. Missing discovery, motions and other issues may result in multiple pre-trial conferences. If your attorney is able to reach a resolution that is beneficial to you, your case could be resolved at a pre-trial conference by why of plea. Technically, there is no plea bargaining DWI’s. The only way you get a “deal” is if your lawyer presents a valid defense to the prosecutor and the prosecutor says to the judge “defense counsel may be right about this”   which is different from saying he is right. A deal may come in many forms, too many to list here. You can contact me if you need clarification.

DWI Trial

If no deal can be struck or no deal is offered, then trial may well result. For example, Gary blew a .16 BAC on the Alcotest. This is his first offense so the penalties included, inter alia, between 7 months and 1 year loss of license, mandatory ignition interlock, fines, fees, surcharges. If the prosecutor is unwilling to move off of that, then in most cases, I would go to trial. If the prosecutor says that he will consider recommending that the reading should be suppressed, well maybe we can start to have a discussion.

A DWI trial can last 2 hours, 2 days or more. There is no jury. The judge is the jury. He will decide the case. At trial, it happens just like T.V. The cops take the stand and testify, and we break them down. Trial go last at the municipal court. For example, on your trial day you will likely arrive in court at 9 am and the trial will start at noon.

Not every case goes to trial, In fact many do resolve before and frequently favorably so for my clients. But you have to be able to hold that hammer. The prosecutor has to know that your lawyer has no problems going to trial and that it’s not going to be a fun day.

What to do Next?

I would suggest that a lawyer who does this for a living is a good place to start. Either get busy living or get busy dying. This is no time to lament the alleged  mistake you think you may have made. Its time to put on the gloves and get to work .

 

 

 

Blew into the Breathalyzer and Still Charged with Refusal

First, the machine used in New Jersey for breath tests is the Alcotest. The breathalyzer was the former device that is no longer in service. However, one could make the argument that the Alcotest is no more reliable.

Regardless, refusal has nothing really to do with the machine. A refusal is charged when a suspect under arrest for suspected DWI refuses to blow into the tube. But the inquiry doesn’t end there. In order for the state to prove a refusal, it must show that there was probable cause for the arrest, that the police complied procedurally by advising the suspect of the penalties for refusal and that the defendant knowingly refused.

This becomes more complicated than one would imagine. Rules are hard for people to follow. Police aren’t immune to this. In fact, police frequently have a hard time following the rules. Whether or not they tell the truth about that on the stand is another story. But I digress.

When someone blows into the machine and is still charged with refusal…well now we have something. We get to that gray area of police officer judgement call. If you blow into the machine, it certainly cannot be considered an unequivocal refusal. That triggers another set of rules for police to follow. Secondly, if you are charged with refusal after you attempted to blow, then the state is going to have a hard time proving that you knowingly refused. All the elements of the state’s case must be proved beyond a reasonable doubt and this sort of situation makes it a lot more difficult.

Maybe we beat the refusal. Now comes the DWI. But after we beat the refusal there is no downside to going to trial on the DWI. That, of course, is assuming the refusal is not dismissed as part of a “resolution”. But in most cases, the state is unwilling to do so. Running the suspensions concurrent is usually the best pretrial offer, which is OK, but I’d prefer a trial and take our chances.

Refusal offenses are tough to beat, but under certain circumstances, a refusal charge can be overcome. Additionally, there is current issues before the NJ Superior Court that are affecting just about all  pending refusal cases, but the window may close soon. Regardless, no one should take a seven month loss of license lying down.

Challenging Field Sobriety Tests

field_sobeirty_test (2)I am uniquely qualified in the area of standardized field sobriety tests. My certifications and training give me the ability to cross examine police officers in a way that (in my opinion ) many attorneys can’t.

The standardized field sobriety tests are scientific test. The walk and turn, the one leg stand, and the HGN were developed in a laboratory setting applying the same instructions and using the same criteria to assess performance over and over again. Accordingly, it is required that the police officer administering the tests stick to the same criteria.

I can safely say that I have never crossed examined an officer who stuck to the rules when it came to administering and scoring the tests. There are always problems with the administration of the tests. Knowing what those problems are is how I make my living. You would expect that every lawyer claiming to be a DWI attorney world also be aware of ALL the issues. This is not the case.

There are a lot of considerations involved in choosing your attorney. My point is that when you make that choice, be certain that the counsel you choose is properly qualified and has the experience to adequately represent you during a trial, because it’s not always about pleading out.

Especially with first offense Dwi charges where I can suppress the Alcotest, or with second and third offenses where the penalties are not tiered, going to trial happens more than one would think.