Monday, December 31, 2007

Implications of New Jersey¹s DWI law

Implications of New Jersey¹s DWI law

Outline by Kenneth Vercammen
First offender penalties increased P.L. 2003, CHAPTER 314

Previously, a person who drives with a blood alcohol concentration (BAC) of 0.10% or higher is considered guilty of drunk driving. The New Law, effective January 20, 2004, reduces the BAC that constitutes drunk driving to 0.08%. The basis for this reduction was that the federal government has statutorily mandated that each state establish driving with a BAC of 0.08% or higher as its per se drunk driving offense. Any state that fails to pass such a law will lose a percentage of its federal highway funding.

Under the Law's provisions, if the offender's BAC is 0.08% or higher but less than 0.10%, or if the offender operates a motor vehicle under the influence of intoxicating liquor, or if the offender permits another person under the influence of intoxicating liquor or with a BAC of 0.08% to 0.10% to operate a motor vehicle, the fine imposed would be $250 to $400 and the license suspension would be for three months.
If the offender's BAC is 0.10% or higher, or if the offender operates a motor vehicle while under the influence of narcotic, hallucinogenic or habit-producing drug, or the offender permits another person who is under the influence of narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle, or permits another person with a BAC of 0.10% or higher to operate a motor vehicle, the fine imposed would be $300 to $500 and the license suspension would be for not less than seven months or more than one year. This means a first time offender with a BAC of only .10 faces a minimum 7 month license suspension, increased from 6 months.
The bill also brings the law imposing penalties on underage persons who operate motor vehicles after consuming alcohol into conformity with the new 0.08% standard.

Third offender mandatory jail P.L. 2003, CHAPTER 315, approved January 20, 2004

The new law requires persons convicted of a third or subsequent drunk driving offense to be sentenced to a mandatory 180-day term of imprisonment in a county jail or workhouse, but provides that the court may reduce the term of imprisonment for each day, up to a total of 90 days, that the person participates in an alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center (IDRC).
Under the new law, at least 90 days would have to be served in jail without exception. Drunk drivers who are required to serve the mandatory term of imprisonment are ineligible to participate in a work release program. Under a work release program, qualified prisoners may be employed outside the jail, but when not working, they must be confined to the jail.

Under old law, persons convicted of a third or subsequent offense of drunk driving are subject to 180 days imprisonment, except that the court may reduce this term by up to 90 days for each day served performing community service. Furthermore, these offenders may not be required to serve their term of imprisonment in the county jail or workhouse, but may serve such imprisonment in an inpatient rehabilitation program.

New REFUSAL Law- Persons who refuse to submit to a test lose their driver's license for seven months to one year for a first offense. Sentence can be concurrent or consecutive.
The NJ State Bar Association Board of Trustees voted to Oppose this legislation, based upon the recommendation of the Municipal Court Section, Chaired by Kenneth Vercammen.

Previously, persons who commit a first offense of refusing to submit to a breathalyzer test after being arrested for drunk driving lose their license for six months. This bill would increase this period of license suspension to seven months to one year so that a first time offender would receive the same penalties that a drunk driver with a BAC of 0.10% receives.
The bill also amends the refusal statute to specify that the period of license suspension imposed for a first offense of refusing to submit to a breathalyzer test may be concurrent or consecutive to a license suspension imposed for a drunk driving offense arising out of the same incident. The bill also clarifies the language concerning consecutive license suspensions for second or subsequent refusal convictions and convictions for drunk driving.
The bill revises the penalties imposed for refusing to submit to a breathalyzer test when that offense occurs in a school zone.
In order to promote uniform enforcement of the drunk driving and the refusal statutes, the bill requires the Attorney General to promulgate guidelines concerning the prosecution of violations of those statutes. The guidelines are to be disseminated to county and municipal prosecutors within 120 days of the bill's effective date.

Is the mere technicality by officer failing to sign ticket a defense to DWI? Yes
1. Failure to Sign Summons Requires Dismissal of DWI. State v. Fisher 363 NJ Super. 108 (App. Div. 2003). R. 7:2-1(b)(2) requires a summons to be signed by "a law enforcement officer or the judge, municipal court administrator or deputy court administrator of the court having territorial jurisdiction." Absent a police officer's or court officer's signature, the summons lacks an attestation of probable cause and must be dismissed. Decided September 18, 2003
Now- 90 day statute of limitations for DWI issuance.

2. School zone 2nd offense penalty even if 1st offense non school zone State v. Reiner cite- 363 N.J. Super. 167 (App. Div 2003)
The issue raised by this appeal is the permissible sentence for an individual convicted of a second driving while intoxicated offense, N.J.S.A. 39:4-50, when the second offense occurs within a school zone as defined by N.J.S.A. 49:4-50(g), but the first DWI offense did not. Specifically, the question is whether the Law Division erred in sentencing defendant under subsection (g) as a second offender because it was not his second school-zone DWI offense. Subsection (g) essentially doubles the penalties provided under subsection (a) for a DWI conviction when the offense occurs in a school zone (including a school crossing). We held that defendant was properly sentenced under the enhanced penalty provisions of subsection (g) because he was a second DWI offender whose second offense was committed in a school zone. Judge Fuentes dissented.
The NJ Supreme Court on January 29, 2004 ORDERED that the petition for certification is granted, limited solely to the issue of whether defendant received sufficient notice of the state¹s intent to prove a violation of N.J.S.A. 39:4-50(g). The Court will consider this issue as a part of defendant¹s pending appeal pursuant to Rule 2:2-1(a)(2) (A-45-03).]

3. Nurse Certificate Admissible in DWI Even Though No Notary. State v. DeFrank 362 NJ Super. 1 (App. Div. 2003).
Defendant was convicted of driving while intoxicated. At trial, a certificate signed by the nurse who drew a sample of his blood for alcohol-content analysis was admitted into evidence pursuant to N.J.S.A. 2A:62-11. The certificate contained a certification that met all the requirements of R. 1:4-4(b). Defendant argued that the certificate should not have been admitted into evidence because nurse¹s signature was not notarized by a notary public as required by N.J.S.A. 2A:62-11. The court held that the fact that the certificate was not signed in the presence of a notary public does not in any way diminish the legal obligation of its signatory to tell the truth nor prevent the criminal prosecution of those who make false statements therein. In this context, the underlying purpose for the procedural requirements in N.J.S.A. 2A:62-11 were satisfied. The certificate was properly admitted as evidence that defendant¹s blood was drawn by a medical professional, in a medically acceptable manner.

4. 911 Call May Permit MV Stop. State v. Golotta 178 N.J. 205 (2003). NJ Supreme Court reverses Appellate Division and holds the stop of the defendant¹s vehicle based on a 911 call describing a motor vehicle that was being driven erratically was valid under the U.S. Constitution and the New Jersey Constitution in light of the significant risk of death or serious injury to the public and to the vehicle¹s driver.

5. Unsolicited Statement By Drunk Admissible Even if No Miranda. State v Cryan 363 NJ Super. 442 (App. Div. 2003).
Unsolicited statements made by defendant while in police custody and without the benefit of Miranda warnings were properly admitted into evidence because they were not the product of police interrogation or its functional equivalent.

6. Police Can Hold DWI Defendant Until Relative or Friend Arrives. State v. Greeley 178 NJ 38 (2003).
The police department¹s policy of refusing to release an intoxicated person except to the care of a relative or friend does not impermissibly encroach on that person¹s statutory right to an independent test of his or her blood alcohol level. Reading the statute in conjunction with N.J.S.A. 59:5-6, respecting release by the police of intoxicated persons, compels the conclusion that the Legislature did not intend to confer an absolute right of release upon DWI arrestees. N.J.S.A. 59:5-6 provides immunity to police officers for injuries sustained by a driver arrested on DWI charges subsequent to release, but only if the person is released ³in a position of relative safety and refuge.² Reading the two statutes together, the Court finds that the Legislature has manifested an overarching concern regarding the release of intoxicated persons and has chosen to limit the circumstances in which police properly may release such persons. The policy of releasing an intoxicated DWI arrestee only to a responsible friend or relative provides a reasonable opportunity to secure an independent BAC test. If an arrestee fails in an attempt to arrange for an escort by a friend or relative, police do not violate his rights by detaining him until he becomes sober enough to no longer present a danger to himself or others.
The new "John's Law" permits a municipality to enact an ordinance permitting police to hold a DWI defendant in a jail cell, even if a family member is waiting in the police station to pick up the driver. This would prevent a driver from exercising his rights to an independent test.

7. Can a person drive drunk to escape from getting beaten?
Sometimes- Defense of Necessity Permitted In DWI Case. State v. Romano 355 NJ Super. 21 (App. Div. 2002)
The common-law defense of necessity is available to a defendant charged with driving while intoxicated, where defendant was attacked and beaten by several men, sustained severe injuries, and where his car was shaken, kicked, and rocked, and his attackers threatened to kill him. Defendant had no realistic alternative but to violate the DWI statute to escape a brutal and potentially deadly attack.
The trial judge erred in perceiving defendant's defense as duress rather than necessity and improperly shifted the burden of proof to defendant. Defendant must come forward with some evidence of the defense, but the state bears the ultimate responsibility to disprove the defense beyond a reasonable doubt. Defendant's DWI conviction is reversed.

8. State v Sohl _ NJ Super. __ (App. Div. decided November 6, 2003 A4055-02)
The original course completion date does not have to be set forth on the replica in order for it to be admissible as proof of the trooper-operator's certification as a qualified breathalyzer operator.

9 Police could follow drunk into garage
State v. Nikola 358 NJ Super. 573 (App. Div 2003)
A police officer who has temporarily detained a motorist outside her garage, based on probable cause to believe she has been driving while under the influence of alcohol, may follow the motorist into her garage while she retrieves her driving credentials and then arrest her without a warrant.

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Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.

Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.

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