Cases Affecting DWI Prosecution and Defense

From the NJSBA Annual Meeting Presented by Kenneth Vercammen, Esq., Cranbury Prosecutor 1991- 1999
1. Appellate Judges to Ignore Factual Errors Below State v. Locurto 304 NJ Super. 514 (App. Div. 1999). It was improper for the Appellate Division to engage in an independent assessment of the evidence. A trial court is not to articulate its credibility findings in detail when the reasons supporting those findings could be inferred from, and are well-supported by, the account of the facts and testimony presented in the trial court's decision.

2. State Cannot Appeal Acquittal on Refusal; Consent to Breath Test Must be Unequivocal State v. Widmaier 157 N.J. 475 (1999). A person arrested for driving while intoxicated may not be acquitted of a refusal to take a breathalyzer test unless he or she unequivocally and unambiguously consented to the test. In addition, the double jeopardy clause of the federal and state constitutions bars the state from appealing Widmaier's acquittal of the refusal charge.

3. DWI Road Block Approved State v. Reynolds ___ NJ Super. ___ (App. Div. 1999). A-3820-97T3F decided November 6, 1998. LEXIS cite 1998 NJ Super. LEXIS 538. Cranford police road block, which stopped each and every car, and did not cause traffic back-ups, was constitutional in the manner conducted. There is no Fourth Amendment prohibition to preclude police distribution of DWI informational literature at such a stop when police identified themselves and indicated screening purpose of the stop.

4. Bank Court Cannot Hold a Municipal Court in Contempt In Re Perez 220 B.R. 216 (Bankr. D.N.J. 1998). The debtor moved to compel a municipal court judge to comply with the Bankruptcy Court's order directing a rescission of an order suspending the debtor's driving privileges (the bankruptcy order); and for sanctions and fees for the municipal judge's alleged continuing violation of the Bankruptcy Order. Source: NJ Law Journal, Bankruptcy Law Supplement, February 1, 1999 p. 24.

5. Municipal Courts May Have To Rescind the Suspension of a Debtor's Driving Privileges In Re Raphael ___ B.R. ___ (Bankr. D.N.J. 1999) J. Wizmur Docket No. 42-6-9359. LEXIS cite 1999 Bankr. LEXIS 130. In case where debtor proposed to pay his municipal court traffic fines through his Chapter 13 plan, the court clarifies the basis for its prior order directing that each of the municipalities involved rescind the suspension of the debtor's driving privileges to the extent that the suspension was based on the debtor's failure to pay a court-imposed fine; the court finds that its order is more akin to a judgment against a non-immune municipality, rather than a judgment against the State, and therefore the municipal courts do not have sovereign immunity.

6 Post conviction requires hearing State v. Murray 315 NJ Super. 535 (App. Div. 1998) (A-0402-96T4, decided October 30, 1998).

A defendant's petition for post-conviction relief, alleging his trial attorney and the attorney for his co-defendant, who entered a guilty plea prior to defendant's trial and testified as a State's witness against defendant, shared as of the date of defendant's trial a common office address and the same telephone number, presents a prima facie claim of ineffective assistance of counsel warranting a plenary hearing. Denying the petition without a plenary hearing was an error, Petitioner shall have the burden to demonstrate the applicability of State v. Bellucci, 81 N.J. 531 (1980), as further amplified in State v. Norman, 151 N.J. 5 (1987).

7 Legally parked car no grounds for search State in the Interest of A.P. 315 NJ Super. 166 (Law Div. 1998) (FJ-19-1014-97, decided May 22, 1998).

Here, where the juvenile was a passenger in a legally parked car and the officer who approached him to make a community - care-taking inquiry, as opposed to a lawful stop based on a traffic violation, had no prior knowledge of the juvenile, and there was no criminal activity in the area and no signs of alcohol or a controlled dangerous substance, the juvenile's furtive movements in avoiding eye contact with the officer did not provide a basis for an objective reasonable and articulable suspicion, and the evidence seized (a lighter and a "pipe-like smoking device") must be suppressed; the issue of whether or not the juvenile's statement to the officer that he did not lean forward and down as the officer approached was lie which would justify a suspicion that he might be armed, is subject to ambiguity and interpretation.

8. Bankruptcy Court Lacked Jurisdiction to Restore Drivers License In Re Burkhardt U.S. Bankruptcy Court 220 BR 837 (D. NJ May 13, 1998), Case No. 97-40459 The Bankruptcy Court lacked subject matter jurisdiction to compel the restoration of a debtor's state-issued and regulated driver's license. Additionally, the debtor's uncontested chapter 13 plan was confirmed because the propose confirmation of the plan did not violate New Jersey's Eleventh Amendment immunity in seeking to discharge motor vehicle fines and surcharges that run, in part, to the State. Source: NJ Lawyer Facts-on-Call Order No. 4138.

9 Municipal court judge can amend case to correct town State v. Ryfa __ NJ Super. __, (Law Div. 1998) Essex County, Municipal Appeal No. 102-97, decided May 5, 1998. Where a motor vehicle complaint is made returnable in the wrong municipality due to an error by the officer as to the location of the offense, the municipal court has broad authority to amend the summons to correct the location, pursuant to R. 7:10-2, and to transfer the case to the proper court, pursuant to R. 1:13-4(a).

10. Sup MT must be raised timely State v. Colapinto 309 N.J. Super. 132 (App. Div. 1998) In this action charging defendant with DWI, defendant failed to timely raise a suppression issue when he became aware of the issue during the testimony of a police officer at the initial municipal court proceeding, yet continued to cross-examine the officer, allowed the State to fully present the direct testimony of another officer, proceeded to partially cross-examine that officer, completed his cross-examination at another court session one week thereafter, and raised his claim of impermissible detention midway into his summation. The Law Division judge's decision suppressing the evidence, therefore, is reversed. Additionally, we note that had we addressed the merits of defendant's constitutional claim of impermissible detention, we would have concluded that, under State v. Dickey 294 N.J. 619 (1998), even though defendant was detained for approximately 25 to 45 minutes, "the combination of the duration of the detention and the degree of intrusion" upon defendant's liberty interests did not exceed permissible bounds, where defendant, while waiting for another officer to arrive to administer psychophysical tests, was not handcuffed, touched, or questioned, and was permitted to remain seated in his own motor vehicle.

11. Fifth offense DWI does not equal Second offense State v. Lucci __ N.J. Super. __ (A-6027-96T1,( App. Div. 1998) Defendant, as a fifth DWI/refusal offender, whose fifth DWI offense occurred more than ten years after his third, is not entitled to be sentenced as a second offender pursuant to the drop-down provision in N.J.S.A. 39:4-50(a). That leniency provision does not apply to fourth and subsequent offenses. At best, defendant would be entitled to a drop down from a fifth offender to a fourth offender status and, thus, still subject to the enhanced penalties for a "third, or subsequent" offense.

12. Hospital blood test admissible in DWI State v. Lutz 309 N.J. Super. 317 (App. Div. 1998) Defendant appeals from his convictions for driving under the influence of alcohol under N.J.S.A 39:4-50 and careless driving under N.J.S.A. 39:4-97. Defendant contends that the results of his blood test are forensically unreliable and inadmissible. The Court affirms the driving-under-the-influence-of-alcohol conviction and note that although there may be differences in the methodology used for tests conducted by law enforcement for "forensic" purposes in comparison to those conducted by a hospital for "diagnostic" purposes, the procedure utilized to test defendant's blood was sufficient to establish the reliability of defendant's test results. We reverse and remand the careless driving charge because the State presented no evidence indicating that defendant had been speeding or otherwise driving without due caution and circumspection.

Editorial Assistance provided by NJ Municipal Court Law Review Associate Editor LeVar Harris, a fourth-year student at Rutgers University. An active member in university affairs, Mr. Harris is involved in Student Council, the University Hearing Board and a host of other campus organizations. Mr. Harris is also an honors student preparing for a career in the field of law. Case citations provided by NJ Trial Lawcast, the voice of the law. NJ Trial Lawcast has audio tapes of legal decisions. NEW LAW. A conviction of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L. 1966, c. 73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than .10%.

NEW LAWS

P.L. 1998, C. 108. Creates a graduated driver's license system for new drivers of passenger automobiles.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

8. You must wait 5-10 years to expunge a first offense. 2C:52-3

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.

11. You may be required to do Community Service.

12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.

13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.

14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

15. You lose the presumption against incarceration in future cases. 2C:44-1

16. You may lose your right to vote.

The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.

Jail for Crimes and Disorderly Conduct:

If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.

NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;

(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;

(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;

(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.

2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:

a. (1) $200,000.00 when the conviction is of a crime of the first degree;

(2) $150,000.00 when the conviction is of a crime of the second degree;

b. (1) $15,000.00 when the conviction is of a crime of the third degree;

(2) $10,000.00 when the conviction is of a crime of the fourth degree;

c. $1,000.00, when the conviction is of a disorderly persons offense;

d. $500.00, when the conviction is of a petty disorderly persons offense;

If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.