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New Jersey DWI Defense
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A Defense Overview Of Drunk
Driving In New Jersey ( DWI )

There is a widespread misconception that a charge of NJ DWI (N.J.S.A. 39:4-50) simply cannot be successfully defended. I continue to be amazed by clients who contact me and are persuaded after speaking to other attorneys, that there are no defenses to a DWI charge. I am also shocked at Defendants who plead guilty with counsel who has either not thoroughly analyzed discovery, or worse, not even requested or examined the State's case at all.

While a DWI charge presents a complex and unique challenge, through zealous and creative advocacy, viable and successful defenses can be raised. The defense of a DWI charge has far to many wrinkles to address in one article. I will attempt, in this article, to provide a basic and general overview of the alcohol-related DWI charge.

N.J.S.A. 39:4-50 makes it unlawful to "operate a motor vehicle while under the influence of intoxicating liquor ... or ... with a blood alcohol concentration of .08% or more by weight of [blood] alcohol."

New Jersey's Drunk Driving Statute creates two distinct and separate offenses; (A) operating a motor vehicle while "under the influence of intoxicating liquor", and (B) operating a motor vehicle with a "blood alcohol concentration of .08% or more."

Under the influence has been defined as a Defendant who has consumed alcohol "to the extent that his physical or mental faculties are deleteriously affected." State v. Emery, 27 N.J. 348, 355 (1958). It has also been defined as a “substantial deterioration or diminution of the mental faculties or physical capabilities of a person.” see State v. Tamburro, 68 N.J. 414, 421 (1975).

Under the second prong, a Defendant who operates a motor vehicle with a blood alcohol concentration of .08% or more is guilty no matter how the alcohol affected him. This is referred to as a “per se” offense.

The most common blood alcohol concentration (BAC) evidence will be in the form of a breath reading. The chemical analysis performed by the breath testing device converts breath alcohol to a blood alcohol concentration reading. Courts may take judicial notice of the general scientific reliability of the most commonly used breath testing device, the “breathalyzer.” see State v. Downie, 117 N.J. 450, 466-469 (1990), certiorari denied 111 S.Ct. 63, 498 U.S. 819, 112 L.Ed.2d 38 (1990); Romano v. Kimmelman, 96 N.J. 66, 82 (1984). Test results are admissible if the State demonstrates that (1) the machine was in proper working order, (2) was administered by a qualified operator, and (3) was used in accordance with accepted procedures. Romano v. Kimmelman, 96 N.J. 66, 82 (1984).

Since a .08% breath reading alone is sufficient to sustain a conviction, any defense where such a reading is alleged must focus on the reliability and validity of the reading (i.e., was the breath testing device operated properly by a qualified operator, and was it operating properly). If it is determined that the machine was either not operating properly, or was not operated properly by a qualified technician, it is possible to exclude the test results from evidence.

Discovery must be promptly requested from the State. see R. 7:7-7. Examination of discovery regarding the operation and results of the breath-testing device should be referred to outside experts for consultation and analysis. There are some areas of potential deficiency which can be gleaned by defense counsel. The breath machine operator's certificate should be reviewed to determine if the operator was properly certified at the time of the test. see generally N.J.A.C. 13:51-1.1 through N.J.A.C. 13:51-1.13 (establishing the requirements for certification). Counsel should also review the Alcohol Influence Report which should contain a breath testing device operational check list to ascertain whether the operation was performed in accordance with accepted procedures. see N.J.A.C. 13:51-3.1 through N.J.A.C. 13:51-3.6 (setting forth the approved methods for analysis). Lastly, since periodic testing and certification of breath testing devices is required (see N.J.A.C. 13:51-3.4), Counsel should request and review the breath testing device inspection certificates (both before and after the breath test) to determine whether the machine was operating properly.

Some Police Departments videotape the DWI Defendant at the police station; including videotaping the administration of the breath test. If a videotape exists, arrangements should be made to obtain a copy. If the State is unable to provide a duplicate copy of the video, arrangements should be made to review it along with a defense expert and the client for possible operating errors and other defense issues.

One of my first DWI cases was for a client who was told by other counsel to plead guilty (the readings were .16%). I compelled production of the station videotape. When I reviewed it with a defense breathalyzer expert, we noticed that the breath operator was moving the breathalyzer throughout the test(s) – clearly improper. At trial, the breath tests were excluded from evidence. The observations were compromised through cross-examination and the result was not guilty.

With a low reading case (.11% or lower), special considerations automatically apply. A New Jersey Appeals Court has found that a breath reading .01% over the legal limit (in the case an alleged .11%) might not constitute a “per se” finding of guilt. see State v. Slinger, 281 N.J. Super. 538 (App. Div. 1995). At that time, the “per se” limit (the so-called “legal limit”) was .10% - lowered on January 20, 2004 to .08%. However, the same reasoning espoused in the case applies to the reduced standard. The Court in State v. Slinger concluded after hearing expert testimony, that the breathalyzer machine most commonly used in New Jersey generally might have "an error of plus .015 percent."

While the State has tightened up their procedures because of this ruling, there is still defense validity to the issue(s) raised in the Slinger case. And, given the January 2004 amendments, a .10% or .11% case might be brought down to the lower .08 tier, saving substantial license revocation for the client. Of course, this is only one defense area to review – careful analysis of the entire case is required to thoroughly assess the State’s BAC case.

Assuming that the breath test results can be excluded or compromised, the State may still gain a conviction on what is commonly referred to by Courts as "observation" evidence (that the Defendant was "under the influence"). The Police Officer(s) will generally testify regarding observations of the Defendant before and after the arrest (E.G., erratic driving, flushed face, bloodshot eyes, slurred speech, odor of alcohol on breath, fumbling and slow hand movements, leaning on the car for support, etc.). The Officer(s) will also testify regarding the Defendant's performance on Field Sobriety Tests (E.G., heel to toe, finger to nose, one leg stand, recitation of the alphabet, counting backwards, etc.).

There might be factors that could have caused the observations and poor performance on the psychophysical tests, each having nothing to do with the consumption of alcohol. Each test and observation should be scrutinized and screened to prepare for a creative and effective cross-examination (E.G.: flushed face is often the result of nervousness, bloodshot eyes may be the result of allergies, fatigue or irritants, slurred speech may be how the Defendant typically speaks, lack of balance may have been caused by a medical condition, or if there was an accident, by head trauma, the inability to perform the alphabet and counting test may be the result of nervousness, lack of education or dyslexia, etc., etc.). Experts should, if warranted, be consulted and retained to address the State's observation case.

The National Highway Traffic and Safety Administration of the United States Department of Transportation (NHTSA) recognizes only three Field Sobriety Tests as reliable scientific indicia of intoxication. The Standardized Field Sobriety Test Battery consisting of (1) The Horizontal Gaze Nystagmus, (2) The Walk and Turn, and (3) The One Leg Stand, are regarded as reliable in evaluating alcohol impairment, provided however, they are properly administered and interpreted.

In United States v. Horn, 185 F.Supp.2d 530, 538 (D.Md.2002), United States Magistrate Judge Grimm found that the SFSTs are valid: “[o]nly when … administered in the prescribed, standardized manner; and only when the standardized clues are used to assess the suspect’s performance; and only when the standardized criteria are employed to interpret that performance. If any one of the standardized field sobriety test elements is changed, the validity is compromised.” Id. at 538 (citing NHTSA Student Manual).

In State v. Homan, 732 N.E.2d 952, 89 Ohio St.3d 421 (Ohio 2000), Ohio’s highest court, reviewing Standardized Field Sobriety Tests, astutely recognized that: “[w]hen field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable.” Id. at 955.

The Court in State v. Homan instructed that: “[I]f any one of the standardized field sobriety test elements is changed, the validity is compromised. Id. at 956. (citing National Highway Traffic Safety Administration, U.S. Department of Transportation, HS 178 DWI Detection and Standardized Field Sobriety Testing Student Manual at VIII-3.

Ohio also holds, consistent with Homan, that failure to follow NHTSA procedures precludes admissibility of SFSTs at trial. see State v. Schmitt, 101 Ohio St. 79, 82, 801 N.E.2d 446, 449 (Ohio 2004). Interestingly, the Ohio Legislature tried to overrule Homan by specific Legislation. The Ohio Statute changed the “strict compliance” rule pronounced in Homan to a “substantial compliance” rule. See Ohio R.C. 4511.19(D)(4)(b). However, that unusual Legislation was properly found to be Unconstitutional. see State v. Weiland, 127 Ohio Misc.2d 138, 142, 808 N.E.2d 930, 933 (Licking County Municipal Court 2004).

Penalties arising from a Drunk Driving conviction vary depending on whether the Defendant's conviction is a first, second, or subsequent offense, and whether the breath reading is between .08% to .10% or above .10%. The revocation of the Defendant's driver's license in New Jersey is mandatory for the prescribed minimum time period(s). There is no work or conditional license in New Jersey.

In addition to Court imposed penalties, the New Jersey Motor Vehicle Comission (NJ MVC) will impose a surcharge of $1,000.00 for three consecutive years unless there was a prior conviction within there years in which case the surcharge is $1,500.00 a year. Further, a conviction for DWI results in cancellation of car insurance – forcing the client to obtain insurance through the assigned-risk (high-risk driver) plan.

If a Defendant is facing enhanced penalties as a subsequent offender, defense counsel should review the prior conviction(s) to determine whether the conviction(s) was counseled and if not, whether the Defendant made an adequate waiver of counsel. If the conviction was uncounseled coupled with an inadequate waiver, that conviction may not be used to enhance the period of incarceration which attach for a convicted second or subsequent offender (although the other enhanced penalties may be imposed) see State v. Laurick, 120 N.J. 1 (1990). Most Courts will not apply Laurick with the Defendant's testimony alone (that his prior conviction was uncounseled and he did not make a proper waiver). Counsel should, accordingly, obtain a copy of the ticket and the transcript in connection with the previous conviction.

Defense Counsel should be cognizant that "No plea agreements whatsoever [are] allowed in drunken driving ... offenses." see Appendix to Part VII Court Rules, Guideline 4. The exception is that a Prosecutor can recommend dismissing a Refusal to Submit Charge in exchange for a plea on the DWI charge. The other exception is where the State cannot prove their case beyond a reasonable doubt. In that case, a Prosecutor is duty-bound to dismiss the charge or amend it to conform to the proofs.

There is no right to a Jury Trial for DWI offenses. see State v. Hamm, 121 N.J. 109 (1990), certiorari denied 111 S.Ct. 1413, 499 U.S. 947, 113 L.Ed. 2d 466. Lastly, in 1984, the late Chief Justice Wilentz mandated a 60 day arrest to disposition goal on all DWI cases which most Municipal Courts assiduously seek to achieve. Defense counsel must, accordingly, be particularly diligent in preparing the defense.

The Drunk Driving charge has become increasingly complex and difficult to defend in New Jersey and the penalties are harsh. Counsel should not, however, assume that a DWI charge cannot be defended, even if a high BAC reading is alleged. Advising a client to plead guilty without thoroughly examining the State's case is a recipe for a malpractice claim. Through careful and diligent analysis, and the selective use of qualified experts, a successful defense to a DWI charge is possible.

Call on New Jersey DWI lawyer, Greggory M. Marootian when you need experienced professionals to give you the facts, and restore your integrity.

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