New Jersey Criminal Defense Journal : New Jersey Criminal Defense Lawyer & Attorney : Travis Tormey of Alexander M. Iler Law Firm : Monmouth County NJ DWI & Drunk Driving Defense

The Monmouth County DWI Taskforce will conduct two drunk driving checkpoints this weekend in an attempt to apprehend any individual who is driving under the influence of alcohol or drugs. The first DWI stop will be held in Wall Township on Route 34 from 11 p.m. this evening through 3 a.m. tomorrow morning. The second DWI stop will be held tomorrow night in Spring Lake Heights on Route 71. This checkpoint will also be held from 11 p.m. through 3 a.m.

As long as certain administrative procedures are followed, DWI checkpoints are constitutional, legal, and valid in New Jersey as a traffic stop in drunk driving cases. Thus, it is important to be aware of these DWI stops and remain under the legal limit (.08% BAC) when driving through a DWI checkpoint.

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If you are convicted of a drunk driving offense in New Jersey, you will be sentenced to the Intoxicated Driver Resource Center (known as "IDRC"). If you are a first time offender, you will be sentenced to a minimum of twelve (12) hours in the IDRC. If you are a second time offender, you will be sentenced to a minimum of fourty-eight (48) hours in the IDRC. If you are a third time offender, you will be sentenced to 180 days in jail (half of which can be served at an inpatient rehabilitation facility). When you are released from jail or rehab, you must submit to a twelve (12) hour IDRC evaluation.

The authority for IDRC comes from section (f) of the DWI statute in New Jersey, N.J.S.A. 39:4-50. The IDRC program is designed to evaluate and provide alcohol and driver education classes to those convicted of drunk driving in New Jersey. In the program, participants attend mandatory alcohol and highway safety education courses. The program also evaluates participants for potential drug and alcohol problems and determines any necessary treatment. If treatment is necessary, the IDRC refers the participant to a provider for a minimum 16-week treatment program. The participant may also supplement any treatment with their own self-help meetings (such as Alcoholics Anonymous (AA)). Finally, the IDRC monitors compliance and reports any issues to the Municipal Court and the Motor Vehicle Commission. The failure to attend IDRC as required by a DWI sentence typically results in jail time.

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DWI checkpoints are often held throughout New Jersey in an attempt to detect, identify, and arrest drunk drivers. They are even more prevalant during the summertime at the Jersey Shore. Under New Jersey law, DWI checkpoints are a valid means of apprehending drivers who are under the influence of alcohol as long as certain procedures are followed by law enforcement.
 

This weekend the Monmouth County DWI Task Force will conduct a DWI stop on Route 9 South in Manalapan from the hours of 11 p.m. Friday night through 3 a.m. on Saturday morning. According to the Asbury Park Press article, "[t]ask force members and officers from the Manalapan Police Department will pull vehicles from the southbound lanes into the Sun Bank parking lot to determine drivers' sobriety, said Brielle Police Chief Michael W. Palmer, task force coordinator."

Please keep this checkpoint in mind as you plan your travels for the weekend.

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An ignition interlock device has been a part of New Jersey drunk driving law for a long time. However, whether or not to require the use of these devices in a vehicle owned by a drunk driving offender has been discretionary and at the request of a municipal court judge. Now, a new law which was recently passed in New Jersey makes it mandatory to install an ignition interlock device in certain scenarios. For a first time driving while intoxicated (DWI) offender, if your breath test readings (blood alcohol content (BAC)) is .15% or greater, then the new law requires mandatory installation of an ignition interlock device during the time of the license suspension as well as for six (6) months to one (1) year following the license suspension.

For an individual convicted of a second drunk driving offense in New Jersey, the new law requires a mandatory installation of an ignition interlock device during the license suspension and for one (1) to three (3) years following the suspension of your driver's license. Finally, for a third DWI offense in New Jersey, there is a mandatory installation of an ignition interlock device during the license suspension and for one (1) to three (3) years following the restoration of your driving privileges in New Jersey.

This new law creates a significant tier in terms of breath test results, namely because of the .15% BAC requirement for ignition interlock devices. It is important if you are over the legal limit, .08%. It is important if you are over .10% BAC because, if you are a first time offender, you are facing a seven (7) month to (1) year license suspension instead of a three (3) month license suspension if your readings are above .08% but below .10%. Now, .15% is also significant because if your readings are above .15% you are facing the mandatory installation of an ignition interlock device in your vehicle during and after your license suspension.

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As I expected, the trial of a Freehold Township man charged with vehicular homicide, aggravated manslaughter, eluding police, and other charges in connection with a drunk driving crash which took the life of a motorcyclist ended in a guilty verdict by the jury. As I discussed in my previous articles about this case, this was a very difficult trial for the Defendant to win. His defense strategy was based on the fact that the other driver, the victim in this case, was also drunk at the time of the accident and that, but for the fact that the motorcyclist was drunk, the accident could have been avoided. However, it was very difficult for the defense to get around the fact that the Defendant was drunk and running from the police at a very high rate of speed when the accident occurred. I think with a different set of circumstances such as both parties were drunk and the Defendant was not running from the police, we may have seen a different result here. The Defendant is facing life in prison based on the jury verdict. The prior plea offer was 15 years with 85% which means the Defendant would have served about 13 years in jail. Now, the Defendant is facing a lot more time in state prison.

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Here is a guest article provided by MyDUIattorney.org:

BAC (Blood Alcohol Level or Blood Alcohol Concentration) is a measurement of the level of alcohol in your blood stream and this is the primary tool for measuring the level of alcohol in any individual’s body. The legal limit in a State or jurisdiction may vary but the DUI arrest and DUI charges will not solely depend on the BAC, although, they will depend majorly on it. The reason why BAC is related directly to drunk driving is because when BAC increases in your body, so does your chances of getting into a car accident and causing damage to yourself or to some other innocent party.

The legal BAC limit in most states if 0.08% which means that 0.08% of your bloodstream is compromised with alcohol. But alcohol percentages will affect different people in different ways, for instance, BAC of 0.02% or less may cause slight disorientation and is considered normal or moderate level of drunkenness. At BAC of around 0.06%, the person’s driving will start to get impaired because he or she will find it difficult to see and their judgment will be impaired. At a BAC of 0.08% or more, there will be visible impairment of muscle coordination and the person’s level of drunkenness will become apparent. At BAC levels go higher than this, not only does driving become dangerous but it also becomes illegal.

The basic reason of drinking for most people is to get a good feeling or to feel light-headed and having just one drink every hour or so will give you that. But alcohol is addictive and when you start increasing the dosage, BAC will also increase bringing about the negative effects of alcohol that are felt and plainly exhibited at BAC of 0.04% and 0.06%. Many people question whether they can control this level of BAC after they have had alcohol and the answer is that once this damage has been done, there is little you can do to repair it. But you can still take care of not allowing your judgment to impair completely.

Make sure that you eat a large and starchy meal right before you drink because the food in your stomach will absorb some of the alcohol. The liver which basically processes the alcohol can only do so much at one time so eating a starchy meal divides the role of processing the alcohol between the food and the liver. Since the liver is a slow processor, you should also drink slowly, giving it time to process the alcohol and keeping your BAC in control. People who drink faster also get drunk faster and end up with a higher BAC.

You can also keep on eating little snacks like fruits, crackers etc. throughout the night because it keeps the digestive system going, slows down alcohol absorption and keeps blood sugar levels high to keep you from getting dizzy and nauseous. Make sure you drink plenty of water after drinking alcohol because your kidneys also process part of the alcohol and water prevents dehydration and helps the kidneys to detoxify your blood easily. As with any issue regarding DUI, you must get guidance from a professional DUI attorney because not only will they know about DUI in your county and State, they will also give you the best possible advice regarding your concerns.

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The principal of Marlboro High School appeared in Millstone Township Court this week on drunk driving charges. The high school principal, who plans to resign in June, is charged with driving while intoxicated (DWI), failure to maintain lane, and driving while intoxicated with a minor in the vehicle. The principal tendered his resignation citing personal reasons on March 22. He is on paid administrative leave until his resignation becomes effective on June 30. For additional information, see the Asbury Park Press article entitled, "Marlboro principal appears in Millstone Township court in DWI case".

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Here is an excerpt from the New Jersey Law Journal regarding State v. Holland which was recently argued and won by the Iler Law Firm in Monmouth County Superior Court in Freehold, New Jersey:

Judges Clash Over Proper Device To Be Used for Taking Alcotest's Temperature

Charles Toutant

04-26-2010

Setting the stage for an appellate showdown, judges in two adjacent counties have come to different conclusions about the type of thermometer that can be used to calibrate the Alcotest in order for its readings to be admissible in drunken driving cases.

A Monmouth County judge ruled on April 16 that the only acceptable temperature probe is the one mentioned in the state Supreme Court's seminal ruling in State v. Chun, 194 N.J. 54 (2008), which found the Alcotest scientifically reliable and authorized its use statewide.

The Chun Court required that Alcotest machines be calibrated every six months by state police technicians, which includes checking the device's temperature sensor for accuracy. At the time, the state used the Ertco-Hart sensor, made by Fluke Corp. of American Fork, Utah. Since then, less-expensive thermometers made by Control Co. of Friendswood, Texas, have been substituted.

But a Mercer County judge last Dec. 17 found that the Chun Court, which adopted a special master's findings that allowed for substitute probes, has implicitly authorized their use, which defense lawyers say is commonplace.

Now, an appeals court is being asked to decide whether substitutions are allowed. After Superior Court Judge Richard English held that they are not, the Monmouth County prosecutor announced he would request an interlocutory appeal and a stay in the interim.

The case, in State v. Holland, 09-069, stemmed from a drunken driving charge in Neptune on June 24, 2009. Nicole Holland's attorney, Alexander Iler, sought to suppress her blood-alcohol content readings of .15 percent and .16 percent, which were far in excess of the legal limit of .08 percent. He cited the use of a Control Corp. thermometer, rather than an Ertco-Hart.

Municipal Judge Mark Apostolou denied the motion but English, sitting in the Law Division, granted it and remanded the case for a new hearing without the Alcotest readings.

English said of the substitution, "I don't see how the Attorney General takes that step without ... going back to the Supreme Court if that's what they have to do. Going back to the Master and saying we need to make a change here."

Special Master Michael King said in his report to the justices that "the Ertco-Hart temperature measuring system or other similar device" be used, but the Court's ruling in Chun mentioned no such substitution, English said. "I don't know why the Supreme Court wouldn't have added that language if that's what they wanted to do," he added.

Chun also stated that each defendant charged based on Alcotest readings is entitled copies of a dozen foundation documents, including an Ertco-Hart Digital Temperature Measuring System Report of Calibration, which Holland did not receive, English noted.

But in the Mercer County case, State v. Azria, 29-2009, Superior Court Judge Mitchel Ostrer denied a defense lawyer's motion to suppress Alcotest results for failure to use the Ertco-Hart. He said the "Supreme Court did not expressly reject the Special Master's acceptance of such similar devices. Therefore, this court does not read the Supreme Court's mention of the Ertco-Hart temperature measuring system to require that system and only that system, particulary absent any stated rationale for such a requirement."

Assistant Monmouth County Prosecutor Monica do Outeiro, representing the state, asserted in court papers that the Supreme Court used the Ertco-Hart name "merely as an identifier" and that both the Control Corp. and Ertco-Hart devices are certified by the National Institute for Standards and Technology.

First Assistant Monmouth County Prosecutor Peter Warshaw says does not know whether substitute thermometers have been used in other cases.

Iler, who heads a Red Bank firm, wants to see the Control Corp. temperature sensor undergo a hearing on the standards for admissibility of scientific evidence as set forth in Frye v. United States, 293. F. 1013 (D.C. Cir. 1923).

"There's no test anywhere from any court or any expert that says the Control Company probe is the equivalent of the Ertco-Hart probe," Iler says. "The Chun order has no language which says any other probe can be substituted. It calls for a specific type of probe."

Evan Levow, a Cherry Hill lawyer who represented the named defendant in Chun , says that getting the court to order a Freyhearing will require a showing that the Control Corp. device may be less reliable than its counterpart.

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The Iler Law Firm made history last week at the Monmouth County Superior Court in Freehold, New Jersey. In State v. Holland, Alexander M. Iler successfully argued a Motion to Suppress the breath test readings based on the use of a substitute temperature probe rather than the temperature probe that was required in the landmark State v. Chun decision.

This case was on appeal from the Neptune City Municipal Court. After the trial judge's denial of our Motion to Suppress the Alcotest breath readings at the Municipal level, our office filed a municipal appeal which was heard at the Monmouth County Superior Court in Freehold. Essentially, our office argued that the breath test readings used in Ms. Holland's case were unreliable because the State used a temperature probe which was manufactured by "Control Company" rather than a temperature probe that was manufactured by "Ertco Hart", the manufacturer that was recognized and approved by the New Jersey Supreme Court in State v. Chun. However, now the State uses a different temperature probe because it is cheaper but the reliability of this substitute temperature probe has never been examined and there has never been any scientific testimony regarding same. Mr. Iler succesfully argued that the breath test readings were unreliable and should be suppressed. The case now goes back to the municipal court with no breath test readings and the future holds either a not guilty or reduced penalties for our client.

Judge Richard W. English, J.S.C. heard the Municipal Appeal on Friday April 16, 2010 and ruled in our favor. Judge English stated on the record that the breath results are not reliable because there has been no scientific testimony whatsoever as to the reliability of the Control Company temperature probe as opposed to the Ertco Hart temperature probe which was examined and approved in State v. Chun. Based on this decision, all breath test readings in which this substitute temperature probe was used are now suspect in Monmouth County and the readings should be suppressed. This is an important decision for drunk driving law throughout New Jersey and is a historic victory for the law firm and for our client.

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There is no statutory requirement that an arrested defendant perform field sobriety tests at the request of a law police officer. Field sobriety tests are the psychophysical tests that the officer asks you to perform which can include the "horizontal gaze nystagmus test" (HGN test), the "walk and turn test", and the "one-leg stand test". However, the duty to submit to field sobriety testing has been established through case law in New Jersey. In State v. Macuk, the court held that "[t]here is a clear legal right to require a motor vehicle operator, arrested on probable cause for 'driving under the influence' or 'while impaired' to submit to a chemical test of bodily substances to determine the amount of alcohol in his blood, or, for that matter, to a physical coordination test." There is no statutory penalty for refusal to submit to field sobriety tests. But, there is an express duty to submit and no right to refuse and this fact can be used against the defendant at trial.

For additional information, please see my DWI page on the Iler Law Firm website.

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The Appellate Division came down with an important decision last week regarding a drunk driving case in North Brunswick, New Jersey. The Court vacated a DWI conviction which came three and a half years after the defendant was charged with drunk driving. The Court found this to be a violation of the defendant's Sixth Amendment right to a speedy trial. In the opinion, State v. Iskander, the Court found the lenghty delay to be largely the fault of the Municipal Court judge and the prosecutor. The case was stayed while the arresting officer served 13 months on military deployment but the rest of the delays were based on the State's failure to provide discovery and the Court's faulty scheduling practices. The defendant entered a conditional plea of guilty pending his appeal based on a denial of his right to a speedy trial. This appeal was heard in Middlesex County Superior Court and denied. As a result, the defendant's counsel appealed this denial to the Appellate Division and was ultimately successful.

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A decision came down from the Appellate Division last week regarding a defendant's right to a speedy trial in a drunk driving or driving while intoxicated (DWI) case in New Jersey. In State v. Tsetsekas, the Appellate Division held that the defendant's right to a speedy trial was violated when the State repeatedly failed to bring him to trial and there was an extensive delay in adjudicating his DWI charge. This is a violation of his due process rights in New Jersey. This extensive delay, almost one-year to prosecute the defendant for drunk driving, was based on the State's inability to provide discovery evidence (a videotape) and the State's failure to subpoena witnesses and prepare for trial. The State received four adjournments for the failure to provide the discovery evidence and at least three more were granted based on the State's witnesses (the State troopers) failure to appear at trial. As a result, the Appellate Division dismissed the charges against the defendant based on a violation of his due process rights and a violation of his right to a speedy trial in New Jersey. For a complete copy of the judicial opinion, see the New Jersey Judiciary website.

The Iler Law Firm currently has an appeal out of Morris County that is strikingly similar to this case. In our case, the Morristown Municipal Court took approximately 405 days to prosecute our client for driving while intoxicated (DWI). The reason for this extensive delay was the State's failure to provide basic discovery evidence which included the certification card of the officer who operated the breathalyzer machine and the videotape evidence of the field sobriety tests. Without the certification card, the breath test readings are inadmissible and the State can only try the case on the physical tests. However, without the videotape, it would also be very difficult for the State to try the case on the physical tests. As a result, the State requested and received a half-dozen adjournments to provide this discovery evidence. In fact, defense counsel requested and received a "try or dismiss" marking on one occasion and the Court failed to dismiss the case on the next listing and granted the State yet another additional adjournment. Thus, this new Appellate Division decision should really help our case and our argument which is scheduled in February before the Appellate Division in Trenton. I will keep you updated as to how the case finally turns out.

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The Monmouth County DWI task force, in cooperation with the New Jersey Division of Highway Traffic Safety, is holding a drunk driving checkpoint to identify drivers who are operating a motor vehicle while under the influence of alcohol or drugs. The DWI checkpoint will be held tonight, Thanksgiving Eve, from 11 p.m. until tomorrow morning at 3 a.m. The checkpoint is being held on Route 9 North in Howell. Task force members and officers from the Howell Police Department will pull vehicles from the northbound lanes into the Regal Plaza parking lot to determine drivers' sobriety.

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The Fire Chief in Fair Haven, New Jersey was officially charged with drunk driving and several other motor vehicle violations this past Tuesday. The DWI charges resulted after a crash and incident which brought dozens of responders to the Oceanic Bridge after the fire chief jumped into the Navesink River on Sunday. Along with driving while intoxicated (DWI), he was also charged with reckless driving, leaving the scene of an accident, and failure to report an accident. He has resigned as fire chief as a result of the charges.

The crash happened Sunday night after the defendant's vehicle, his fire chief vehicle, struck a utility pole on East River Road. He left the scene and was found on the Oceanic Bridge by a Little Silver police officer who tried to talk him into getting into his police car. Instead, the defendant jumped over the side of the bridge into the Navesink River. The defendant was found by rescuers after about 45 minutes. For additional information on this story, please see the Asbury Park press article entitled, "Fair Haven fire chief Shaun Foley faces drunk driving charges, plans to resign".

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Police arrested a 20-year-old Manasquan man this past weekend who was believed to be intoxicated when his vehicle struck a tree on Dwight Drive in Ocean Township. Police found him inside the vehicle at approximately 4:50 a.m. Sunday morning. The Defendant was treated at Monmouth Medical Center in Long Branch before being released. He was then arrested for driving while intoxicated (DWI), underage DWI, and reckless driving. For additional information, please see the Asbury Park Press article.

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A Long Branch firefighter was arrested and charged with drunk driving after he allegedly drove onto a lawn on Forest Street and then tried to flee from police. The defendant is a member of the West Long Branch and Long Branch fire departments. Police attempted to pull over the defendant in his 2002 Ford Explorer but the defendant allegedly fled the scene and parked in a driveway in Long Branch before fleeing on foot. He was eventually apprehended by police and charged with eluding, resisting arrest, criminal mischief, driving while intoxicated (DWI), reckless driving, careless driving, possession of an open container of alcohol in a motor vehicle, and leaving the scene of an accident. As you can see, the police essentially "threw the book" at the defendant and he is facing serious consequences if convicted of these criminal and traffic offenses. For additional information, see the Asbury Park Press article entitled "Firefighter charged with drunken driving in W. Long Branch".

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Police say a Hazlet man tried to run from the police twice during the course of his arrest, once in his vehicle and the second time at police headquarters. Middletown police spotted the driver speeding at 2:15 a.m. Wednesday morning and attempted to stop the vehicle. Instead, the defendant allegedly sped away but failed to negotiate a turn properly and ran into several garbage cans on the road. The driver eventually stopped the vehicle and was arrested for driving while intoxicated (DWI), eluding, and criminal mischief. Then, when police took him to the station to provide a breath sample the defendant refused, became combative, and tried to run away from police at the station. This led to an additional charge of attempting to escape police custody.

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Another tragic DWI story, this time in Edison, New Jersey. A New Jersey man was sentenced recently to twelve (12) years in prison for two counts of vehicular homicide following a drunk driving crash that killed his two friends. The 25-year-old driver has a blood alcohol content (BAC) of more than twice the legal limit and was driving his Acura over 90 mph when his car hit a utlility pole in Edison,  New Jersey in July 2008. His two roommates, who were passengers in the vehicle, died in the crash. They were 24 years old. Both were graduate engineering students at Rutgers University. The driver, who also graduated from Rutgers, said he and his friends has just finished a bottle of Jack Daniels and were on their way to buy another bottle.

This is a very tragic story for the defendant and the victims. It is always important to remember that individuals who drive drunk are not only facing license suspension and fines but also significant jail time if they are involved in an accident and others are injured.

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A New Jersey man was recently sentenced to 4.5 years in state prison after his 16th drunk driving conviction. The defendant is a 40-year-old East Rutherford man whose driver's license has been suspended 78 times. Based on this last conviction, the defendant must, in addition to the prison sentence, pay $9,000.00 in fines and has his license suspended for 39 years. The defendant plead guilty in June to a DWI crash which happened in April. At the sentencing, the defendant also plead guilty to leaving the scene of the accident of the April crash in which his SUV collided head on with a man and his four-year-old daughter. Fortunately, they escaped injury.

I must say, I have never heard of anyone being conviction of drunk driving 16 times. Further, this defendant is extremely lucky that the driver and passenger of the other vehicle were not injured. If they were injured, he would be facing additional prison time for aggravated assault or vehicular homicide depending on the extent of their injuries.

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Police have charged a 17-year-old boy with driving while intoxicated (DWI) in connection with an automobile accident which occurred in Colts Neck over Labor Day weekend. A 17-year-old passenger was also charged with underage possession of alcohol and hindering apprehension because he allegedly ran from the scene of the September 6th accident. For additional information, see the Asbury Park Press article.

It is important to remember the distinction between underage DWI and adult DWI in New Jersey. In this case, because the driver was 17, if he was under the influence of any alcohol at the time he operated the motor vehicle, he can be charged with underage driving while intoxicated (DWI). Thus, if he submits to a breath test and his breathalyzer readings are .01 or higher, he is guilty of underage DWI. Moreover, if his breath test results are .08 or higher, he can and will also be charged with adult driving while intoxicated (DWI). This is a significant distinction because the penalties and license suspension are significantly different for underage DWI (commonly known as "baby DWI") and adult DWI.

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A Bridgewater Municipal Court judge was arrested last week on driving while intoxicated (DWI) charges in Lavallette, New Jersey. Lavallete police stopped the judge's vehicle last Saturday night because he was allegedly swerving. This motor vehicle stop led to the officers suspecting the Municipal Court judge of drunk driving. According to the Asbury Park press article, "Rizzolo is facing charges of driving under the influence, obstruction of justice, failure to maintain lane, reckless driving, refusal to submit a breath sample, and a violation of a municipal loud and unusual noise ordinance. He is scheduled to appear in Lavallette Municipal Court on Sept. 22." According to police, the judge's eyes were watery, his speech was slurred, and there was an odor of alcohol emanating from his person during the motor vehicle stop. This led to the drunk driving charges as well as the refusal to submit to a breathalyzer charge.

For additional information, see "Lavallette police detail arrest of Bridgewater judge".

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I represented a client this morning in Woodbridge Municipal Court charged with driving while intoxicated (DWI), consumption of alcohol in a motor vehicle, simple possession of marijuana (under 50 grams), and possession of drug paraphernalia. My client was allegedly sitting in a rest area on the New Jersey Turnpike with the car running, an open container of alcohol in the vehicle, and marijuana/marijuana paraphernalia in the vehicle. The state trooper approached the vehicle and allegedly smelled marijuana on my client and observed the marijuana and paraphernalia in plain view in the vehicle. Then, the police officer conducted the standard field sobriety tests, took the defendant's breath test readings, and obtained a urine sample from my client.

I was hired by the defendant's family to represent him. He had no prior criminal record and this was his first charge for drunk driving. I received the discovery evidence from the State and I was able to isolate a significant issue with regard to the drunk driving charge. First, the defendant's breath test readings were .01% blood alcohol content (BAC). Remember, the legal limit in New Jersey is .08% BAC. Thus, the defendant was under the legal limit in terms of alcohol despite the fact that he allegedly had an open container of alcohol in his vehicle. Further, the defendant's urine analysis came back as positive for marijuana. However, marijuana stays in your system for 30 days after consumption. Thus, the State could not prove that he was under the influence of marijuana at the time of operation. Finally, the State failed to utilize a Drug Recognition Expert (commonly known as a "DRE") at the time of the arrest to examine the defendant and determine if he was under the influence of drugs at the time he operated the vehicle. Therefore, the State was unable to meet its burden and show that the defendant was under the influence of drugs or alcohol at the time of the operation of the motor vehicle. As a result, the driving while intoxicated charge was dismissed and the defendant applied for, and received, a conditional discharge with regard to the marijuana offenses. This was an extremely satisfying result for the client and the firm as the defendant avoided the license suspension associated with a DWI charge.

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A 22-year-old Toms River man pled guilty to vehicular homicide and was sentenced to five years in prison for a June 2007 accident which led to the death of a 7-year-old girl. Superior Court Judge Francis R. Hodgson in the Ocean County Superior Court in Toms River sentenced the defendant to five years in prison, three years of parole, and suspended his driver's license for two years following his release.

The crash occurred on June 10, 2007 at the intersection of Garfield Ave and Route 37 in Toms River. According to the Ocean County Assistant Prosecutor assigned to the case, the defendant was driving at least 70 mph in a 50 mph zone. The defendant was in an argument with his girlfriend which resulted in dozens of cell phone calls immediately prior to the crash when he ran a red light. The State argued that the defendant's actions gave rise to a level of recklessness because of the combination of speed, cell phone usage, and disregard of the traffic signal. For additional information, see the Asbury Park Press article entitled "Five-year prison sentence in death of Lakewood girl, 7"

Typically, vehicular homicide charges surround a drunk driving incident. In this case, it doesn't appear that this was an alcohol related incident. However, the level of recklessness involved gave rise to a vehicular homicide charge. Vehicular homicide charges in New Jersey are governed by N.J.S.A. 2C:11-5 which provides:

§ 2C:11-5. Death by auto or vessel

a. Criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle or vessel recklessly.

Proof that the defendant fell asleep while driving or was driving after having been without sleep for a period in excess of 24 consecutive hours may give rise to an inference that the defendant was driving recklessly. Proof that the defendant was driving while intoxicated in violation of R.S. 39:4-50 or was operating a vessel under the influence of alcohol or drugs in violation of section 3 of P.L. 1952, c. 157 shall give rise to an inference that the defendant was driving recklessly. Nothing in this section shall be construed to in any way limit the conduct or conditions that may be found to constitute driving a vehicle or vessel recklessly.

b. Except as provided in paragraph (3) of this subsection, vehicular homicide is a crime of the second degree.

(1) If the defendant was operating the auto or vessel while under the influence of any intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or with a blood alcohol concentration at or above the prohibited level as prescribed in R.S. 39:4-50, or if the defendant was operating the auto or vessel while his driver's license or reciprocity privilege was suspended or revoked for any violation of R.S. 39:4-50, section 2 of P.L. 1981, c. 512, by the Director of the Division of Motor Vehicles pursuant to P.L. 1982, c. 85, or by the court for a violation of R.S. 39:4-96, the defendant shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, during which the defendant shall be ineligible for parole.

(2) The court shall not impose a mandatory sentence pursuant to paragraph (1) of this subsection unless the grounds therefore have been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish by a preponderance of the evidence that the defendant was operating the auto or vessel while under the influence of any intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or with a blood alcohol concentration at or above the level prescribed in R.S. 39:4-50 or that the defendant was operating the auto or vessel while his driver's license or reciprocity privilege was suspended or revoked for any violation of R.S. 39:4-50, section 2 of P.L. 1981, c. 512, by the Director of the Division of Motor Vehicles pursuant to P.L. 1982, c. 85, or by the court for a violation of R.S. 39:4-96. In making its findings, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information.

(3) Vehicular homicide is a crime of the first degree if the defendant was operating the auto or vessel while in violation of R.S. 39:4-50 or section 2 of P.L. 1981, c. 512 while:

(a) on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;

(b) driving through a school crossing as defined in R.S. 39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

(c) driving through a school crossing as defined in R.S. 39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L. 1987, c. 101 (2C:35-7) may be used in a prosecution under subparagraph (a) of this paragraph.

It shall be no defense to a prosecution for a violation of subparagraph (a) or (b) of this paragraph that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing. Nor shall it be a defense to a prosecution under subparagraph (a) or (b) of this paragraph that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.

(4) If the defendant was operating the auto or vessel in violation of R.S. 39:4-50 or section 2 of P.L. 1981, c. 512, the defendant's license to operate a motor vehicle shall be suspended for a period of between five years and life, which period shall commence upon completion of any prison sentence imposed upon that person.

c. For good cause shown, the court may, in accepting a plea of guilty under this section, order that such plea not be evidential in any civil proceeding.

d. Nothing herein shall be deemed to preclude, if the evidence so warrants, an indictment and conviction for aggravated manslaughter under the provisions of subsection a. of N.J.S.A. 2C:11-4.

As used in this section, "auto or vessel" means all means of conveyance propelled otherwise than by muscular power.

e. Any person who violates paragraph (3) of subsection b. of this section shall forfeit the auto or vessel used in the commission of the offense, unless the defendant can establish at a hearing, which may occur at the time of sentencing, by a preponderance of the evidence that such forfeiture would constitute a serious hardship to the family of the defendant that outweighs the need to deter such conduct by the defendant and others. In making its findings, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information. Forfeiture pursuant to this subsection shall be in addition to, and not in lieu of, civil forfeiture pursuant to chapter 64 of this title.

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The Appellate Division recently upheld the conviction of a Hispanic man who alleged that he did not understand the instructions read to him regarding his rights and the requirement that he submit to a breathalyzer test to determine his blood alcohol content (BAC). The Appellate Division held that state law does not require the translation of the mandatory statement read to all drunk-driving suspects. The defendant, German Marquez, argued that the statement should have been read to him in Spanish.

The Court did recommend that the Motor Vehicle Commission consider having the mandatory DWI statement translated in Spanish and other languages or potentially have them recorded in other languages to be played for suspects who potentially do not understand English. As a result of this decision, the Appellate Division upheld the municipal court judge's decision which found the defendant guilty of careless driving, driving while intoxicated (DWI), and refusal to submit to a breath test. The defendant will lose his license for seven (7) months based on these convictions. For additional information, please see the Asbury Park Press article entitled "Court: Breath-test rules read to motorists should also be in Spanish". Further, the entire Appellate Division opinion can be found on the New Jersey Judiciary website.

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A 23-year-old Howell woman was arrested and charged with driving while intoxicated (DWI) after a multi-vehicle accident on the Garden State Parkway last Friday. The accident occurred a little before midnight on Friday evening as the driver allegedly rear ended another vehicle and caused a multi-vehicle pileup. For additional details regarding the accident, please see the Asbury Park Press article entitled "Howell woman charged with DWI following multi-car crash".

It appears from the article that several of the individuals involved in the accident were injured. As a result, the driver may be facing indictable criminal charges as a result of the accident on top of the drunk driving charge she is already facing. Those charges could include aggravated assault, death by auto, etc. depending on the severity of the injuries. For additional information on drunk driving charges, please see my criminal defense and DWI website.

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New Jersey is considering a new drunk driving bill which would require certain first time DWI offenders to install a lock on their vehicle's ignition. The lock releases after the driver blows into the breathalyzer like device and is deemed sober. A bill approved by the Assembly Judiciary Committee Monday would require first time DWI offenders whose blood alcohol content (BAC) was greater than .15% when they are convicted of DWI to install this lock on the ignition to their vehicle. Remember, .08% BAC is the legal limit in New Jersey. For additional information, see the Asbury Park Press article entitled "N.J. drunken driver ignition lock bill advances".

This bill, if passed, would have a significant impact on drunk driving law in New Jersey. This would create an incentive for drivers to refuse to submit to a breath test if they fear that their breathalyzer or Alcotest readings are higher than .15%. I'm not sure that this is the best result and I don't think this is the impact that the legislature wants to have on drunk driving law in New Jersey.

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A 19-year-old driver of an SUV struck a utility pole around 2 a.m. on Monday in Toms River. The driver was not injured but was charged with driving while intoxicated (DWI) by police as a result of the accident.

It is important to remember the potential charges for an underage driver who is driving under the influence of drugs or alcohol. As opposed to a driver who is over 21 years of age, if an underage driver has a blood alcohol content (BAC) of .01% or higher, the driver can be charged with underage DWI in New Jersey. Moreover, if the breathalyzer or Alcotest readings are over .08%, which is the legal limit in New Jersey, the driver will be charged with adult DWI.

This can be crucial for a young driver because the penalties involved for underage DWI and adult DWI are very different. If the driver is only charged with underage DWI, he or she is facing a license suspension of 30 to 90 days and 15 to 30 days of community service. However, if the driver is charged with adult DWI (and is a first time offender) the driver is looking at a license suspension of 3 months if their blood alcohol content was between .08% and .10% and a license suspension of 7 months to 1 year if their BAC was .10% or higher. For additional information, please see my criminal defense and drunk driving website.

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A DWI checkpoint is being conducted by law enforcement in Marlboro, New Jersey this weekend on Route 9 South. The Monmouth County DWI Task Force, in cooperation with the New Jersey Division of Highway Traffic Safety, is running the DWI roadblock from 11 p.m. Friday through 3 a.m. Saturday. Officers will pull vehicles from the southbound lanes of Route 9 into the Lowe's parking lot to determine if driver's are under the influence of alcohol and drugs.

For information on driving while intoxicated (DWI) charges, please see my law firm's criminal defense and DWI website which contains information on traffic stops, proof of operation, proof of intoxication, breathalyzer tests, blood alcohol content (BAC), and much more.

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The result of a recent DWI case in Belmar, New Jersey has been the subject of considerable discussion and debate in Monmouth and Ocean County, NJ. A drunk driver, with a blood alcohol content (BAC) of .115, was driving on Route 35 when he struck the victim, who was standing in the middle of the road, and carried the victim's body for several blocks before he stopped and called for help. The 22-year-old pedestrian was killed as a result of the accident. A grand jury in December considered the facts of the case and declined to indict the driver for vehicular homicide, which includes a maximum of ten (10) years in prison if convicted. The jury considered the fact that the victim was also drunk, with a blood alcohol content (BAC) of .26, and that the victim also had cocaine in his system. Further, the victim was standing in the middle of the road on Route 35 which contributed to the accident. The driver testified that he didn't see him and knew that he hit something but wasn't sure what it was.

Now, the driver faces charges in Belmar Municipal Court for drunk driving which can include up to 30 days in jail, a $500 fine, and a one year license suspension for a first offense DWI. This is a tragic case all around. I feel bad for the victim's family as they will suffer this tragedy the rest of their lives. However, I am not sure if sending this man away to state prison would have been the best result either. For additional information, please see the Asbury Park Press article entitled, "DWI plea not enough for family".

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The Monmouth County DWI Task force and Division of Highway Traffic Safety will conduct a DWI checkpoint (also known as a "sobriety checkpoint") on Friday night in Howell, New Jersey. The checkpoint will be held from Friday night at 11 p.m. through Saturday morning at 3 a.m. on Route 9 South in Howell.

The DWI task force members will pull vehicles from the southbound lanes into the Regal Plaza parking lot to determine if drivers are under the influence of alcohol or drugs. For additional information on the constitutionality of drunk driving roadblocks in New Jersey, please my criminal defense and DWI website.

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Memorial Day Weekend gives rise to a number of drunk driving incidents and arrests every year. As a result, the Monmouth County DWI Task Force, in cooperation with the New Jersey Division of Highway Safety, is conducting a DWI checkpoint this weekend to apprehend drivers who are under the influence of alcohol or drugs. The DWI checkpoint will be run in Middletown, New Jersey from 11 p.m. Friday night through 3 a.m. Saturday morning on Route 35 North.

In New Jersey, the constitutionality of roadblocks like these is clearly established. As long as law enforcement complies with certain procedures, the probable cause for the traffic stop at a DWI checkpoint is sufficient to sustain a drunk driving charge. However, an experienced DWI lawyer may be able to challenge other aspects of the DWI charge such as proof of intoxication, proof of operation, or the admissibility of the breathalyzer or Alcotest results. For additional information, please contact the experienced criminal defense and DWI lawyers at the Iler Law Firm for immediate assistance at (732)842-7787.

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I wrote an article in early April regarding a drunk driving accident which led to to two counts of second degree aggravated assault in Middlesex County. Now, a 25-year-old Plainsboro man has been sentenced to 13 years in prison for fatally injuring an 88-year-old Monroe woman in a drunk driving incident in 2007. The Defendant had a blood alcohol content (BAC) of .161, twice the legal limit, and was driving 72 m.p.h. in a 45 m.p.h. zone. Rather than take the case to trial, the Defendant plead guilty to aggravated manslaughter, aggravated assault, two counts of assault by auto, driving while intoxicated, and other charges. In exchange for his plea deal, he received 13 years in prison. Based on these charges, he was looking approximately 50 years in prison if he took the case to trial and lost. Instead, he will serve approximately nine years and four months before becoming eligible for parole. For additional information, see "Man gets 13 years for DUI death of 88-year-old woman in Plainsboro".

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A bizarre story in the Asbury Park press today regarding an arrest this past Friday. An Old Bridge man was arrested after backing his vehicle up into a police cruiser. According to the article, the officer was stationed at his traffic post when he observed a vehicle stopped in the middle of the roadway. When he went over the investigate, the car moved and pulled up on the wrong side of the road. The officer activated his lights and attempted to stop the vehicle but the vehicle fled. Then, in a bizarre twist, the car pulled over abruptly and then started backing up. The defendant backed the vehicle up right into the police cruiser. Fortunately, the officer was not injured.

The defendant was arrested and charged with aggravated assault with a motor vehicle, eluding, obstruction, and driving while intoxicated (DWI). The defendant was taken to Robert Wood Johnson University Hospital in New Brunswick before being taken to the Somerset County Jail on $20,000 bail.

In this case,the defendant is suspected of driving under the influence of drugs rather than alcohol. Thus, the State retained a drug recognition expert (known as a "DRE") to examine the defendant. This "DRE" is trained in recognizing whether a driver is under the influence of drugs. This is necessary, of course, because the breathalyzer readings will come back .00% since there is no alcohol in the defendant's system. However, the State may still be able to prove a DWI based on the defendant being under the influence of drugs.

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A 20-year-old was charged with underage DWI and underage alcohol possession in Belmar last week. The driver allegedly struck a parked car on Belmar Avenue in Belmar, New Jersey just after 1 a.m. on May 15, 2009. Police said that the driver was playing with his Ipod when his 2000 Honda collided with a 1998 Ford on the side of Belmar Ave. Police investigated and found the driver to be under the influence of alcohol and in possession of a partially consumed six pack of beer.

This can have a significant impact on this young man's life. If his breathalyzer readings came back above .00%, he can be found guilty of underage driving while intoxicated (DWI) in New Jersey. Further, if his blood alcohol content (BAC) was above .08%, he can also be charged with adult DWI. However, it appears from the Asbury Park Press article that he was only charged with underage DWI and underage possession of alcohol. Thus, it leads me to believe that his breathalyzer readings came back above .00% but below .08%.

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A Plainfield police officer plead guilty on April 17 to third degree assault by auto, driving while intoxicated (DWI), and failure to exhibit a driver's license relating to a 2007 car crash in which the officer's blood alcohol content was nearly three times the legal limit at .23%. The accident occurred on Route 22 in North Plainfield on the night of July 31, 2007. As part of the plea agreement, the officer has given up his job, faces probation with sixty (60) days in the Somerset County jail, the loss of his driver's license for two years, thirty (30) days of community service, and fourty-eight (48) hours in the Intoxicated Driver's Resource Center along with fines and court costs. For additional info, please read "Plainfield Police Officer Accused of Driving Drunk, Causing Crash Forfeits Job".

This is a very tragic story that could have turned out a lot worse for the officer. This story is eerily similar to another post I made recently regarding a 23 year old man who was sentenced to six years in prison for second degree aggravated assault arising from a drunk driving accident. In this case, the police officer was extremely lucky that the other individuals involved in the accident were not severely injured. Otherwise, he too would have been facing a substantial prison sentence or even vehicular homicide if one of the other drivers or passengers died during the drunk driving accident.

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The New Jersey State Legislature is considering a bill that would require drivers involved in a motor vehicle accident, which results in injury or death to another, to submit to mandatory sobriety tests to determine if they are driving under the influence of alcohol or drugs. Currently, police can only conduct sobriety tests when there is evidence or suspicion that the driver is intoxicated. This reasonable suspicion allows police to conduct sobriety tests on the driver to determine if the driver is in fact under the influence. However, the fact that the driver was in an accident does not alone create the reasonable suspicion necessary to require field sobriety testing.

The bill is proposed in response to a tragic accident in 2007 when a 17-year-old high school senior was killed as a passenger in a vehicle which ran into a tree. The 17-year-old driver was charged with careless driving and paid a $200 fine as a result of the accident. However, the driver was never tested for alcohol and drugs. On the other hand, the victim's body was tested for alcohol and drugs.

This bill could have a significant impact on the DWI landscape in New Jersey. If every driver is required to perform field sobriety tests when they are involved in a motor vehicle accident which results in death or injury, there will be a significant number of these drivers who will in fact be charged with driving while intoxicated (DWI) who otherwise would not have. This would increase the number of DWI offenses in the State and would provide some justice for the victims of these accidents. For additional information on this bill, please see "Sobriety test may be mandatory if a crash results in death, injury."

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I was in Middlesex County Superior Court on Friday negotiating a plea agreement on behalf of a client. While in court, I saw a sentencing before the Honorable Joseph L. Rea which really affected me. As a criminal defense lawyer, I have seen a lot of difficult cases and terrible things but something about this case really made me think about life, the decisions we make, and the consequences of our actions.

The case was a drunk driving incident which turned into two counts of second degree aggravated assault. The Defendant was a 23 year old man with no significant criminal history to speak of. He had one conditional discharge for a marijuana offense. However, in this case, he was charged with driving while intoxicated (DWI) and two counts of second degree aggravated assault arising from a traffic accident which occurred while he was driving under the influence. His blood alcohol content was two and a half times the legal limit at .20. He crossed over a double yellow line and hit a vehicle head on. The two individuals in the vehicle were severely injured and almost died. The driver, a man, was in the hospital for four months and had injuries including a broken leg, broken ankle, and lascerated liver. The woman, his girlfriend, was in the hospital for a month and a half and also suffered significant injuries. Both individuals recovered from these injuries and were present in court for the sentencing.

The Defendant pled guilty to second degree aggravated assault as a result of this accident. His plea agreement was contingent upon the prosecutor recommending six (6) years in prison. He was looking at five (5) to ten (10) years in prison for each count of second degree aggravated assault. One of the victims spoke at the sentencing. He said that he didn't hate the defendant and he didn't want him to spend the rest of his life in prison but also that the defendant needed to be taught a lesson. The defendant's family also spoke and begged for mercy for their son, brother, and boyfriend. He is a young kid and feels significant remorse for what he has done. Obviously, he never intended for anyone to get hurt but his conduct rises to the level of recklessness which allows him to be charged with second degree assault.

In the end, the judge sentenced the defendant to six (6) years in prison. I believe this was a just sentence. On the one hand, you feel bad for this young man who got behind the wheel when he shouldn't have and got into a severe car accident.  So many people have done the same thing but because their conduct did not result in an accident or because the injuries from an accident are not severe, they are not looking at jail time. However, he is facing jail time based on the serious injuries his reckless conduct inflicted. He was very close to facing vehicular manslaughter charges if the driver of the vehicle died from the accident. This young man is going into prison at 23 and he won't be eligible for release until he has served at least 4.5 years under the No Early Release Act in New Jersey. He must serve 85% of his sentence.

On the other hand, I believe the sentence is just because the court must deter other individuals from engaging in this type of conduct. For example, ff the judge showed mercy in this case, others would believe that they could get behind the wheel and, if they were in an accident which resulted in serious injuries, they also could receive leniency from the court. It was just a very unfortunate situation all around.

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There will be a driving while intoxicated (DWI) checkpoint in Shrewsbury, New Jersey this weekend. The checkpoint will be conducted by the Monmouth County DWI Task Force. The checkpoint will be held from 11 p.m. tonight until 3 a.m. tomorrow morning on Route 35 South. The Shrewsbury Police Department will pull drivers from the southbound lanes of Route 35 into the Shrewspury Plaza parking lot to conduct sobriety testing.

In New Jersey, courts have held that DWI roadblocks (also known as sobriety checkpoints) are valid if certain procedures are followed. The location of the checkpoint must be appropriate based on historical arrests at that location (i.e. this is an area where the police have found significant drinking and driving). Next, public safety and awareness will be increased by the use of the checkpoint. This checkpoint also must be closely supervised and notice of the checkpoint must be published in advance. In this case, police placed an article in the Asbury Park Press advising residents of the checkpoint. As a result, when these procedures are followed the roadblock is constitutional and is considered valid as a traffic stop for DWI charges.

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The landmark DWI decision of State v. Chun was handed down in March 2008. In that case, the New Jersey Supreme Court found the Alcotest breath testing machine for DWI prosecutions to be reliable enough for use in New Jersey courts. The Court required that certain changes be made "forthwith" in the Order dated March 17, 2008. The New Jersey Bar filed a lawsuit this week alleging that the Attorney General's Office has failed to make the necessary upgrades to the software and to establish a public database of Alcotest results. As you can see, it has been more than a year since the Court's decision in Chun.

The New Jersey Bar seeks an Order to Show Cause why the State hasn't complied with the software and database requirements and requests that the Court appoint a special master to hear applications for enforcement of the Chun decision. The Bar alleges that the manufacturer devised the software revisions shortly after Chun but that the State has not approved the implementation of same. Further, the database was to include any and all Alcotest breath samples and readings taken in New Jersey so DWI defense attorneys could compare their client's readings to others around the state.

It will be very interesting to see how this turns out. This could have a significant impact on DWI prosecutions in New Jersey where Alcotest readings are used to prove intoxication.

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A former Morris County Municipal Court judge allegedly burped 78 times in order to avoid a breathalyzer test to determine his blood alcohol content (BAC). George Korpita, who previously served as the Municipal Court judge in Dover, Rockaway Borough, and Victory Gardens in Morris County, NJ was stopped on February 15, 2008 for suspicion of driving while intoxicated (DWI).

The reason for Korpita's burping is clear: there is a 20 minute observation period in New Jersey under State v. Chun which means that law enforcement must stop and observe a suspect for twenty minutes prior to conducting the breath test to ensure that 1) the suspect has not consumed alcohol within twenty minutes of the test, 2) the suspect did not throw up, spit up, or burp within twenty minutes of the breath test, and (3) the suspect did not chew gum or any other substance within twenty minutes of the exam. If any of these issues arise it can effect the breath test results and then the test results will not be reliable.

Thus, the suspect in this case, George Korpita, as an attorney and municipal court judge, knew the law and burped 78 times in order to prevent law enforcement from conducting the breath test. Each time he burps the twenty minute waiting period must start again. Korpita's attorney claimed that the burping arose due to indigestion and anxiety. I sincerely doubt that the judge will accept this argument. Korpita's conduct essentially constitutes a refusal to submit to a breath test and he was charged with both DWI and Refusal in this case.

For additional information on this case, see "Former Morris County judge burped 78 times to avoid DWI test, police officer testifies".

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It is very satisfying as an attorney when your hard work pays off to the benefit of a client. Our firm recently represented a client in Morristown Municipal Court who was charged with driving while intoxicated (DWI). Defendant was arrested and charged with DWI in February 2008. Over the past year, there have been more than a half-dozen court appearances related to this charge. First, the State failed to provide discovery evidence to my office for the first several months of the case. Specifically, the State failed to provide the Alcotest Operator's card as well as the audio and videotapes relating to our client's arrest. Then, my office made several motions to dismiss the case for failure to provide discovery. Unfortunately, these motions were denied. However, the judge did mark the case "try or dismiss" which means that, if the State failed to provide the discovery evidence before the next court appearance, the case would be dismissed. Then, the State failed to provide discovery evidence at the next court appearance. However, the judge who made the previous "try or dismiss" marking was on vacation and a substitute judge was filling in for him. As a result, the substitute judge failed to dismiss the case and denied our motion to dismiss once again.

The client decided to appeal this ruling to the Superior Court. Any decisions or findings of the Municipal Court can be appealed to the County if necessary. Thus, we appealed this ruling to the County and were heard in Morristown Superior Court in November of 2008. Once again, our motion was denied. However, the Superior Court judge stated on the record that this matter should be disposed of immediately. In New Jersey, there is a directive from the New Jersey Supreme Court that DWI cases should be disposed of within sixty (60) days. As you can see, this case has taken more than a year to resolve.

Now, the case was once again adjourned by the State because the State could not produce the officers at trial for the next listing. Further, the police officer was unable to testify as to the twenty minute observation period required under State v. Chun. Essentially, the police must stop and observe a suspect for twenty minutes prior to conducting the breath test to ensure that they have not consumed any alcohol twenty minutes before the test, that they did not throw up or spit up anything during that time, and that they did not chew gum or any other substance within 20 minutes of the exam. Any of these things can effect the breath test results and then the test results will not be reliable. Thus, after more than a year of criminal defense work, a half dozen court appearances, and an appeal to the County, we have worked out a favorable deal for our client. The breath test results will not be admissible based on the violation of the twenty minute waiting period. However, the State can still use the field sobriety tests to prove intoxication. Therefore, our client will plead guilty to DWI but will only be looking at 3 months license suspension rather than 7 months. Further, this guilty plea is contingent upon our ability to appeal this matter to the county one more time because of the violation of my client's right to a speedy trial. If the Superior Court grants our appeal, this case will be dismissed entirely. This is an extremely favorable outcome for my client, who had Alcotest readings of .21.

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The New Jersey statute which governs the "implied consent" of drivers to provide a breath sample is N.J.S.A. 39:4-50.2 which provides:

§ 39:4-50.2. Consent to taking of samples of breath; record of test; independent test; prohibition of use of force; informing accused

(a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S. 39:4-50 or section 1 of P.L.1992, c.189.

In New Jersey, if you refuse to provide a breath sample when asked to do so by police, you will be charged with Refusal to submit to a breath test. Essentially, when you operate a motor vehicle on the roads of the State of New Jersey, you consent to provide a breath sample if required by law enforcement. However, these breath samples can only be required if police have a reasonable basis to believe that you are driving under the influence of alcohol or drugs. The reasonable basis is usually a combination of the reason for the initial traffic stop (such as weaving in and out of your lane or being in an accident) and the field sobriety tests which are conducted by police if they suspect the driver is intoxicated. These field sobriety tests can range anywhere from reciting the alphabet backwards, to the walk and turn test or the one leg stand test.

Thus, if you are asked to provide a breath sample you must do so or you will be charged with refusal under N.J.S.A. 39:4-50.4a. Under this statute, you are facing a license suspension of seven (7) months to one (1) year.

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Many times individuals charged with DWI come to my Red Bank, NJ office and ask "What is a breathalyzer test and what does it do?" Here is a brief overview of breathalyzer tests and their relevance to New Jersey DWI cases.

The New Jersey Drinking and Driving Statute, N.J.S.A. 39:4-50, explicitly discusses the use of a breath-alcohol test to determine a suspected drunk driver's blood alcohol concentration (BAC). Under New Jersey Law, operators of motor vehicles give their "implied consent" to submit to a breath testing device when required. Thus, if you drive in the State of NJ you must submit to a breathalyzer when required by police or you will be charged with Refusal to Submit to a Breath Test (which includes the same penalties as driving while intoxicated). The breathalyzer test is the primary method by which law enforcement accurately determine a suspected intoxicated driver's blood alcohol content.

In Romano v. Kimmelman, the New Jersey Supreme Court held that the responsibility for establishing all of the various conditions of admissibility of breathalyzer results is to be allocated to the State. Thus, it is the municipal prosecutor's responsibility to establish all the evidential proofs such as the breathalyzer machine functioning properly, that the machine was in proper working condition, and that the test was correctly administered. The State must also show that the individual who administered the test was authorized to do so. The New Jersey Attorney General is required to approve the methods of testing as well as the training and qualifications of persons who administer breathalyzer tests. Individuals who seek to adminster these tests must be certified to do so. The certification is basically a license to conduct breath tests on drivers in the State of NJ. This certification or license may be revoked by the Attorney General. Moreover, the license has an expiration date. In fact, the breathalyzer operator's certificate is only valid for the year in which is was issued and the following two years. Finally, breathalyzer operators are required to undergo periodic retraining and re-certification.

As a result, there are many potential challenges to a driving while intoxicated (DWI) charge. Although plea bargaining DWI charges is illegal in NJ, the charge may be dismissed entirely if there are issues surrounding the traffic stop, proof of intoxication, or proof of operation of the vehicle. Therefore, it is important to consult with an experienced DWI lawyer when facing these serious charges.

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