Previously, in a DWI case involving the Alcotest machine, the police officer-Alcotest operator had to observe the arrestee for twenty minutes prior to administering the DWI breath test to the accused. The reason was to make sure that the arrestee didn't burp up any mouth alcohol or have any foreign substances in their mouth which would falsely elevate their DWI reading and lead to a false conviction.
Continue Reading...January 7, 2010 - Today, the Superior Court of NJ, Appellate Division, ruled that a prior conviction for refusing to submit to a breath test or Alcotest (N.J.S.A. 39:4-50.2) , can enhance a current DWI (N.J.S.A. 39:4-50) for sentencing purposes. To clarify this point, the defendant in State v. Ciancaglini, had a 1979 DWI conviction, a 2006 Refusal Conviction and a current 2008 DWI charge. The defendant's position was that she should be treated as a first offender since her only prior DWI conviction was over 10-years old and that a prior refusal never enhanced a DWI sentence. The Appellate Division held that the defendant must be treated otherwise. They treated her as a third offender based upon as the refusal conviction being regarded as a DWI conviction for sentencing purposes.
Continue Reading...
12/14/09--In State v. Tsetsekas, the Appellate Court held that a DWI trial delay of 344 days constituted a failure to provide a speedy trial to the defendant and warranted a dismissal of the DWI charge. The speedy trial violation resulted because of numerous and unnecessary Court appearances by defense counsel--partially caused by the town prosecutor being unprepared several times and numerous failures to appear by the State Police witnesses. In this DWI case, the defense appeared seven to ten times at court and the DWI case was continually delayed because evidence wasn't turned over to the defendant or the State Police failed to appear in Court.
This case is a refreshing change for DWI attorneys such as myself who are continuously pressed by Courts to resolve our DWI cases in the sixty days preferenced by the Administrative Office of the Courts. It should be noted that it is still a tough hill to climb to succeed in a speedy trial context, but it can be done where the prior appearances and reasons for the Court postponements are documented.
October 23, 2009- Monmouth County drivers need to be alert that a task force from Monmouth County will be performing a DWI roadblock in Manalapan and a DWI checkpoint (checkpoint & roadblock are used interchangeably) in Union Beach this weekend to procure whether drivers are operating under the influence of drugs and/or alcohol. Those suspected of intoxication or being under the influence, will be arrested for DWI.
The checkpoint in Manalapan will be in effect from11:00 p.m. tonight to 3:00 a.m. Saturday on Route 9 in Manalapan. The police will be looking to arrest violators and charge them with a Manalapan DWI. They will direct vehicles from the southern lanes into the Sun Bank parking lot to determine drivers' sobriety.The second checkpoint will be in effect from 11:00 p.m. Saturday until 3:00 a.m. Sunday on Route 36 in Union Beach. All accused will be charged with a Union Beach DWI. They will order vehicles from the western lanes into the Holy Family Church parking lot to check sobriety.
If you are charged with a Manalapan DWI or Union Beach DWI and have to appear in the Manalapan Municipal Court or the Union Beach Municipal Court, please feel free to contact my law office to answer your questions on this specialized area in the law. As a Manalapan DWI lawyer and Union Beach DWI lawyer I can alleviate your fears and answer your questions.
SEA BRIGHT — A joint task force made up of members from the Monmouth County DWI Task Force and Sea Bright Police Department will conduct a roadblock this weekend to detect drivers under the influence of alcohol and/or drugs. If arrested for driving while intoxicated, you can be charged with N.J.S.A. 39:4-50 (DWI), N.J.S.A. 2C:35-10 (possession of a cds) and/or N.J.S.A. 39:4-49.1 (possession of cds by the operator of a motor vehicle).
June 12, 2009---HOWELL — A DWI Task force from Monmouth County in conjunction with the NJ Division of Highway Traffic Safety will hold a roadside sobriety, DWI checkpoint from 11:00 p.m. through 3:00 a.m. Saturday on Route 9 north. The cops will pull vehicles from the northbound lanes into the Regal Plaza parking lot to determine driver’s sobriety.
There are very strict procedures for the police to follow in order for the roadblock to be considered legal for purposes of detaining motorists. If the police fail to follow the guidelines, the accused's DWI may be ripe for dismissal. If you have any questions, I can be reached through the contact information on my website
A critical element in every DWI case is proof of operation of the vehicle by the defendant. To lay people, accused of DWI, one would think that operation meant "actually being seen driving the car." Unfortunately, this isn't the case.There have been many reported cases where courts have found operation where the keys and sometimes the defendant weren't even in the car at the time the Police started their investigation into the DWI.
Continue Reading...May 15, 2009-WEST LONG BRANCH — A DWI task force from Monmouth County will be on the hunt for drunk drivers in West Long Branch this evening. The DWI checkpoint or drunk driving roadblock will be in existence from 11:00 p.m. tonight until 3:00 a.m. Saturday along Route 36. The task force and officers from the West Long Branch Police Department will direct vehicles from the westbound lanes into the Monmouth Park Corporate Center parking lot.
In a case (State v. Byrd) decided by the New Jersey Supreme Court earlier this month, the Supreme Court proposed a new change to the New Jersey Evidence Rules which would provide a new hearsay exception; commonly referred to as “forfeiture-by-wrongdoing.” Under the exception, an out-of-court statement made by a witness who fails to testify at trial will result in the statements being admitted at trial; if the witness’ failure to appear was due to the influence of the defendant. In proposing this change, the Court noted the problem of witness intimidation in cases involving the prosecution of gang members, etc.
The reason for the rule is to punish defendants who seek to gain an unjust advantage at trial by eliminating state's witnesses who could be damaging to the defense case. It is also put in place to deter defendants from harming victims and witnesses. The direct damage to defendants results when the Court permits the out-of-court statements of a witness/victim to be admitted at trial. Since a defense attorney cannot cross-examine a written or video statement (for obvious reasons), the defense loses the opportunity to cross-examine the statement maker as to their motives for making the statement, their ability to identify or hear the defendant at the time of the event, the lighting conditions, etc ,as to what they perceived or did not perceive. It will be interesting to see if and when this proposal is adopted and the hearings as well as the standard of proof needed to be overcome by the Prosecutor to establish wrongdoing by a defendant and the admissibility of evidence that otherwise would not have been permitted at trial.
One defense that should be explored by every attorney on behalf of their client is the "twenty minute defense." In the seminal DWI case, State v. Chun, dealing with the new Alcotest machine for breath testing, the Supreme Court stated that the person who administers the breath test in your DWI case must observe you for twenty minutes prior to administering the test. This is to ensure that you have not hiccuped or regurgitated residual alcohol into your mouth; which could skew the breath results.
While I personally believe that this twenty minute observation period is required by State v. Chun, trial court judges and appellate courts have interpreted the law differently and have inexplicably ignored the precedent of our highest Court. However, one recent appeal, titled State v. Nucifora, was decided in Camden County back on December 30, 2008. This is an unpublished letter opinion which stands for the premise that the Alcotest operator must personally observe the accused for twenty minutes before administering the test.
In order to be found guilty of a DWI, codified as N.J.S.A. 39:4-50(a), the Prosecutor has to establish certain proofs. The language of the DWI statute has been defined as "a substantial deterioration or diminution of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic hallucinogenic or habit-producing drugs." State v Tamburro, 68 N.J. 414, 420-421 (1975). The test for determining being under the influence of alcohol is not fitness or unfitness to drive a car, but rather whether the accused has drank alcohol or ingested drugs to the extent that his or her physical coordination or mental faculties are deleteriously defected. State v. Miller, 64 N.J. Super. 262 (App Div. 1960).
Having defended hundreds of DWI's, the signs that police usually reference to support a conviction for DWI based upon the officer's physical observations are: (1) the smell of alcohol on a person's breath; (2) blood-shot eyes; (3) slurred speech; (4) fumbling for documents; (5) staggering or stumbling; (6) poor driving; and (7) inability to perform field sobriety tests.
In the drug possession case of State v. Rahmann Reeds, one of the questions presented was whether expert testimony, presented by the prosecutor, regarding constructive possession of drugs located in a vehicle exceeded the scope of acceptable expert testimony in a drug
prosecution trial. The Supreme Court ruled that the defendant suffered undue prejudice from the expert testimony, wherein, the expert expressed that the defendant constructively possessed
the drugs discovered in the car he was driving. This ultimate-issue opinion by the expert usurped the jury's singular role in the determination of defendant's guilt and incurably tainted the remaining trial proofs, producing an unjust result in defendant's trial.
In this case, the Supreme Court opined correctly that the expert's opinion on the issue of constructive possession was nothing more than a legal conclusion which decided the ultimate issue for the jury.
By: Thomas H. Martin, Esq.
In addressing DWI and refusal issues, the New Jersey Supreme Court has rendered an opinion in the case of State v. Spell. The battle being fought between the defense and the State in Spell was whether or not law enforcement had to read the last paragraph of the required refusal form (referred to as the second paragraph) in every DWI case. The Appellate Division, in Spell held that this measure was always mandatory even when an accused unequivocally refused to submit to the Aloctest. The Supreme Court disagreed and reversed the Appellate Division, opining that the second and final warning need not be read where an accused "either conditionally consents or ambiguously declines to provide a breath sample."
Having argued that a client's refusal charge be dismised because the client's actions were ambiguous or equivocal and that he should have been read the second paragraph as a precatory warrning, I find this decision troubling. Many cases will continue to be litigated on the issue of whether the second paragraph should have been read. Had the Court made the reading of the second paragraph mandatory, upon police in DWI cases, then the litrigation on this specific issue would be moot.
By: Thomas Martin, Esq. Thomas is a DWI and Criminal Lawyer who can be found at www.jerseycriminallawyer.com
12/31/08--The associated press is reporting that New Jersey police departments will be searching for drunk drivers tonight. In an effort to arrest people for DWI, codified as N.J.S.A. 39:4-50, certain towns have been awarded grants to step up their DWI patrols. Specifically, 92 communities have received $5,000 grants from the state's "Over the Limit, Under-Arrest" campaign.
People arrested in NJ for DWI (driving while intoxicated), depending on prior convictions, can be subject to mandatory jail time, signifcant loss of their driving privileges and expensive fines. There are also numerous other consequences; including, but not limited to community service.
It is reported that last year, the state's "Over the Limit, Under Arrest" camapign resulted in over 2,000 drunken driving arrests. As an alternative to driving, mass transit lines across New Jersey will have extra service late Wednesday and early Thursday. A review of the Asbury Park Press web page failed to reveal any other DWI checkpoints.
In the event you have been arrested for DWI, you should contact an attorney who practices in the handling of this specialized area of the law.
By: Thomas H. Martin, Esq.
On December 22, 2008, the Supreme Court rendered a decision in State v. Amelio. In this DWI case, the issue was whether the police had a reasonable basis to stop a drunk driver, based upon his daughter's telephone call to a police dispatcher. The Justices ruled that the phone call to police from the driver's (juvenile) daughter, reporting that her father was driving drunk, constituted adequate justification for the police to stop the defendant/father for suspicion of driving while intoxicated. The Justices reasoned that the daughter's tip was not anonymous in nature, but rather from a known family member who risked prosecution for making a false report in the event she was lying. The justices gave no weight to the defense's arguments that the daughter was a juvenile and only provided limited information that her father was driving drunk. The Court held, that the tip gave the police a reasonable suspicion to stop the defendant’s car.
By: Thomas H. Martin, Esq.
11/13/08 - On Monday, an Appellate Division panel, in a case titled ,State v. Best, ruled that a student’s car or truck which is parked on school property can be searched by school officials if a mere reasonable suspicion exists that illegal drugs or other contraband are contained within the car or truck. This case continues to erode the Constitutional protections against searches on school property. The school officials or police no longer need probable cause or a search warrant for these searches.
This case follows a foundation started by the United States Supreme Court in a case called New Jersey v. T.L.O., 469 U.S. 325 (1985). Essentially, holding that there is a diminished expectation of privacy to which students are subjected to on school property. This diminished expectation of privacy has resulted in rulings that have authorized searches of school lockers and book bags based upon reasonable suspicion.
Under N.J.S.A. 39:4-50, the DWI statute, an individual can be charged with, be found guilty of and receive the same penalties for driving while intoxicated if they allow a drunk driver to operate his or her vehicle. The elements of the "allowing" provison of the DWI statute are set forth in the Appellate Division case of State v. Skillman, 226 N.J. Super. 193, 199-200 (App. Div. 1988). There the Court stated that ..."the State (prosecutor) must produce evidence from which the trier of fact (Judge) may reasonably infer, beyond a reasonable doubt, that such owner or custodian knew or reasonably should have known, of the permittee's impaired condition to drive."
The standard is if you were aware or should have been aware that the person you allowed to operate the vehicle (which you had control over) was drunk, then you can be found guilty of the offense. In defending these cases, it is essential to establish that you were not aware of the operator's intoxication either because the operator did not appear to be visbly intoxicated or that you had some physical manifestation which precluded you from knowing of the person's intoxication.
By: Thomas H. Martin
HOLMDEL — A County DWI task force will execute a roadblock and/or checkpoint tonight to determine if drivers are operating under the influence of alcohol or drugs. The checkpoint will be conducted from 11:)0 p.m. tonight through 3:00 a.m. Saturday along Route 35 South. Memebers from the task force and police from Holmdel will steer vehicles from the southbound lanes into the Dearborn Farms and Garden Center parking lot to determine drivers' sobriety.
If you are charged with DWI under N.J.S.A. 39:4-50 in the State of NJ, in order to convict you of DWI, the State must establish with proof beyond a reasonable doubt that:
(1) you intended to operate or operated;
(2) a motor vehicle that was capable of being operated; and
(3) that this occurred while you were either: (a) under the influence of alcohol, hallucinogenic, narcotic, marijuana, or other habit-producing drug or (b) while having alcohol level of 0.08 % by weight of alcohol in either your breath or blood.
Being arrested for DWI or Refusal is a traumatic circumstance and can result in huge fines, license loss or suspension, jail and high insurance rates. DWI's are tough cases from a defense perspective. To give yourself a fighter's chance, you need to hire an attorney who handles DWI and criminal cases regularly.
Continue Reading...Ocean Twp., NJ - Officers from the Ocean Township P.D. and other DWI task force members from Monmouth County will set up a DWI check point tonight in efforts to arrest people on suspicion of DWI and/or driving while intoxicated; including operators under the influence of drugs.
The time and location of the DWI checkpoint will be from 11:00 p.m. tonight until 3:00 a.m. tomorrow on Route 35 north. The members of the task force and Ocean Township police officers will direct vehicles from the northbound lanes of travel onto Bingham Avenue to check for intoxicated drivers.
In the event, that you are arrested for DWI and/or driving while intoxicated, you should consult an attorney to determine if the police complied with the specific mandates for checkpoints. If the police failed to comply with the requirements, you may be able to have your DWI case dismissed.
As promised in a previous DWI post, the following DWI Penalty chart provides an accused with an idea as to the penalties they are facing under N.J.S.A. 39:4-50. However, if you have a commercial driver's license (CDL) or have been charged with driving in a school zone, you should be advised that there are additional signifcant penalties and you should contact an attorney at once.
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PENALTIES FOR DWI UNDER N.J.S.A. 39:4-50 as of 6/11/08 Does Not Include the Penalties for School Zone Offenses |
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DWI 39:4-50 Operate or Allowing |
1st Offense Per Se Alcotest or Breathalyser Reading of 0.08% but < 0.10% alcohol while operating or allowing operation N.J.S.A. 39:4-50(a)(1)(i) |
1st Offense Per Se Alcotest or Breathalyser Reading of 0.10 % alcohol or operating under the influence of drugs at any intoxicating level N.J.S.A. 39:4-50 (a)(1)(ii) |
2nd Offense Within 10 years of any previous violations of DWI in NJ or any State in the U.S.A. N.J.S.A. 39:4-50(a)(2) |
3rd or Subsequent Offense Within 10 years of of any previous violations of DWI in NJ or any State in the U.S.A. N.J.S.A. 39:4-50 |
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Fines |
$250-$400 |
$300-$500 |
$500-$1000 |
$1000 |
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Jail |
Up to 30 days in jail at the discretion of the Judge |
Up to 30 days in jail at the discretion of the Judge |
From 2 to 90 days in jail |
Jail for not less than 180 days; however, the Judge may reduce such term for each day served in an IDRC approved in-patient rehab center. However, you can only get a maximum 90 days of jail time credit this way |
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Driver's License Supended or Revoked |
3 months driver's license suspension |
7months to 1 year driver's license suspension |
2 year suspension of driver's license |
10 year suspension of driver's license |
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Driver's License Suspened or Revoked Under 17 years old |
Suspension to run through 17th birthday & thereafter for 3 months |
Suspension to run through 17th birthday & thereafter for 7 months to 1 year |
Suspension to run through 17th birthday & thereafter two years |
Suspension to run through 17th birthday & thereafter ten years |
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Other $ Penalties |
VCCB $50 DDEF$100 SNSF $50 N.J.S.A. 39:4-50(i) $100 Other Mandatory penalties per N.J.S.A. 39:5-41 |
VCCB $50 DDEF$100 SNSF $50 N.J.S.A. 39:4-50(i) $100 Other Mandatory penalties per N.J.S.A. 39:5-41 |
VCCB $50 DDEF$100 SNSF $50 N.J.S.A. 39:4-50(i) $100 Other Mandatory penalties per N.J.S.A. 39:5-41 |
VCCB $50 DDEF$100 SNSF $50 N.J.S.A. 39:4-50(i) $100 Other Mandatory penalties per N.J.S.A. 39:5-41 |
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Other Non $ Penalties |
Court may order participation in supervised visitation program as either a condition of probation or a form of community service as per N.J.S.A. 39:4-50(h) |
Court may order participation in supervised visitation program as either a condition of probation or a form of community service as per N.J.S.A. 39:4-50(h) |
Court may order participation in supervised visitation program as either a condition of probation or a form of community service as per N.J.S.A. 39:4-50(h) |
Court may order participation in supervised visitation program as either a condition of probation or a form of community service as per N.J.S.A. 39:4-50(h) |
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Community Service |
No community service for a 1st . offense |
No community service for a 1st. offense |
Shall serve 30 days Community service |
No community service for a 3rd or subsequent offense |
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Intoicated Drivers Resource Center |
12 to 48 hours at IDRC & satisy the screening, evaluation & referral requirements. If the requirements are not met, then there is a two (2) day mandatory jail term & no reinstatement of driver's license until the IDRC has been completed. |
12 to 48 hours at IDRC & satisy the screening, evaluation & referral requirements. If the requirements are not met, then there is a two (2) day mandatory jail term & no reinstatement of driver's license until the IDRC has been completed. |
Subject to N.J.S.A. 39:4-50(b) satisy the screening, evaluation & referral requirements. If the requirements are not met, then there is a two (2) day mandatory jail term & no reinstatement of driver's license until the IDRC has been completed. |
Subject to N.J.S.A. 39:4-50(b) satisy the screening, evaluation & referral requirements. If the requirements are not met, then there is a two (2) day mandatory jail term & no reinstatement of driver's license until the IDRC has been completed. |
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Ignition Interlock Device or Suspended Registration |
Court may order installation of an ignition interlock device on every owned, leased or regularly operated vehicle for not less than 6 months & not greater than 1 year after the expiration of the suspension. No registartion revocation ofr the 1st offense. |
Court may order installation of an ignition interlock device on every owned, leased or regularly operated vehicle for not less than 6 months & not greater than 1 year after the expiration of the suspension. No registartion revocation ofr the 1st offense. |
Court shall order installation of an ignition interlock device on every owned, leased or regularly operated vehicle for not less than 1 year to not more than 3 years after the expiration of the suspension. OR the Court shall order the revocation of the registration certificate and plates for 2 years per N.J.S.A. 39:3-40.1. |
Court shall order installation of an ignition interlock device on every owned, leased or regularly operated vehicle for not less than 1 year to not more than 3 years after the expiration of the suspension. OR the Court shall order the revocation of the registration certificate and plates for 10 years per N.J.S.A. 39:3-40.1. |
The Asbury Park Press has reported that the DWI task force will be out in force tonight in West Long Branch. Specifically, the DWI task force will have a checkpoint tonight to apprehend drivers who are DWI (N.J.S.A. 39:4-50-driving under the influence of alcohol or drugs). The time that the checkpoint will be in effect is from 11 p.m. today through 3 a.m. Saturday on Route 36 westbound. Members of the DWI task force and local police officers will direct vehicles from the westbound side of the highway into the Monmouth Park Corporate Center parking lot to determine whether drivers are driving while intoxicated.
Please remember not to drive while intoxicated. Remember, it is cheaper to take a taxi than it is to deal with the consequences of a DWI. Everyone have a safe and fun Holiday weekend and remember to thank a Veteran.
The answer to this question is to have an attorney file an Expungement under N.J.S.A. 2C:52-1 et seq. with the Superior Court of New Jersey. The most common need for an expungement occurs because a person wants to pass a background check when they seek employment. People expunge ther records so that potential employers will not find out about a past arrest, entry into a Pre Trial Intervention Program, conditional discharge or conviction of a disorderly persons offense, petty disorderly persons offense, crime or municipal ordinance. An expungement is defined as...
Continue Reading...A New Jersey Driving While Intoxicated (DWI) charge has serious consequences for a person who has pled guilty or been found guilty of DWI. These consequences can result in fines, surcharges, community service, loss of your driving privileges and incarceration. If you have been charged with a DWI, you should consult with an attorney to be educated about your rights and defenses. There are many ways to successfully defend a DWI (N.J.S.A. 39:4-50) charge in New Jersey. The following are examples of possible defenses to your DWI charge.
In State v. Jane H. Chun, the state Supreme Court on March 17, 2008 ruled that the Alcotest 7110 breath test used by police throughout the state is scientifically reliable.
Since Jan. 10, 2006, an order known as the "Chun stay" has allowed people who entered guilty pleas to driving while intoxicated to hold onto their driver's licenses pending the high court's exhaustive review of the Alcotest.
The ruling, which stems from a case by 28 defendants in Middlesex County, will allow roughly 10,000 drunken driving cases in New Jersey to move forward.
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