NJ DWI Penalty Revisions Conditionally Vetoed By Governor Christie

On March 23, 2015, Governor Christie conditionally vetoed Assembly Bill A-1368.

The bill would have radically changed penalties for NJ DWI offenders by replacing mandatory license revocations with conditional licenses – conditioned upon the installation of an ignition interlock device on his/her car.

The Governor’s recommendations with the veto would increase NJ DWI penalties by making the ignition interlock mandatory for all first offenders and increasing the term of the ignition interlock for all offenders.

NJ DWI Field Sobriety Testing

I recently spoke at a seminar titled “Handling Your First DWI Case” sponsored by the NJ Bar Association Institute for Continuing Legal Education. I was asked to instruct other NJ lawyers in the area of field sobriety testing. The following are experts from my presentation.

FIELD SOBRIETY TESTING

Most police officers have formal training in field sobriety testing – and specifically, standardized field sobriety testing through the NJ State Police There are two classes of tests; pre-exit tests and standardized field sobriety (SFST) tests.

PRE-EXIT TESTING

Pre-exit tests are optional. An officer will administer pre-exit testing to determine whether to have a suspect exit a vehicle and proceed to administer more reliable standardized field sobriety tests.

Officers are trained that after a stop, they should engage in “face to face contact [and] may administer some simple pre-exit sobriety tests to gain additional information to evaluate whether or not the driver is impaired … and  whether to request the driver to exit the vehicle for further field sobriety testing.” See 2013 NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Guide.

The most common pre-exit tests (see 2013 NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Guide) are:

  • Alphabet. The driver is asked to recite the alphabet beginning with a letter other than A and ending with a letter other than Z. For example, an office might ask a driver to recite the alphabet (without singing) beginning with the letter D as in Dave and stop with the letter P as in Paula.
  • Count Down. The driver is asked to count out loud 15 or more numbers in reverse. For example, an officer might ask a driver to count out loud backwards starting with the number 34 and ending with the number 13.
  • Finger Count (Sometimes referred to as a “finger-pat” test). The driver is asked to touch the tip of the thumb to the tip of each (other) finger on the same hand while simultaneously counting up (1-2-3-4) and then down (4-3-2-1).

NHTSA research shows and training is, these pre-exit tests “have not been scientifically validated but still can be useful for obtaining evidence of impairment.” See 2013 NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Guide.

STANDARDIZED FIELD SOBRIETY TESTING

Standardized field sobriety testing is a battery of three tests administered and evaluated in a standardized and objective manner to obtain validated indicators (called “clues”) of alcohol impairment and to establish probable cause to arrest a DWI suspect. The tests were first “validated” at a .10% BAC and subsequently at a .08% BAC.

These tests were developed from research sponsored by the National Highway Traffic Safety Administration (NHTSA). The research concluded that these three tests when administered and scored properly, were the most scientifically reliable field sobriety tests to determine alcohol impairment.

Formal training in the administration of standardized field sobriety testing consists of intensive classroom study, at least two controlled drinking sessions testing subjects and a final written examination.

The official NHTSA training manuals (including the most recent March 2013 Participant Guide) are on line: http://www.wsp.wa.gov/breathtest/dredocs.php

The January 25, 2005 Attorney General Guidelines for Prosecuting DWI Violations, promulgated pursuant to N.J.S. 39:4-50.2a, states “[f]or those officers with the requisite training, they will generally employ the Standard Field Sobriety Testing [SFST] methods …” see www.state.nj.us/oag/dcj/agguide/d-10jd-dwi-2005.pdf

The three standardized field sobriety tests (known by the acronym “SFSTs”) are (1) the horizontal gaze nystagmus (HGN), (2) the walk-and-turn, and (3) the one-leg-stand.

According to NHTSA, the SFSTs are the most reliable tests to identify impairment. The reliability of SFSTs is, however, contingent upon the tests being administered in a prescribed standardized manner, standardized indicators (“clues”) being used to assess the suspect’s performance, and standardized criteria being employed to interpret the performance.

In United States v. Horn, 185 F. Supp. 2nd 530 (D. Md. 2002), United States Magistrate Judge Grimm undertook an extensive and scholarly review of “standardized” field sobriety tests. Judge Grimm, reviewing the literature and Federal training materials instructed among other things that the standardized field sobriety tests 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.

NHTSA has attempted to dilute the requirement of strict compliance with their standardized procedures (in their most recent 2013 training materials). It is, however, impossible or NHTSA to eliminate the requirement that the tests be administered in a standardized fashion (since the NHTSA validation was tied to properly administered tests).

According to NHTSA, “[t]he validity of SFST results is dependent upon practitioners following the established, standardized procedures for test administration and scoring.” www.nhtsa.gov/people/injury/alcohol/sfst/introduction.htm

The current (2013) training materials (http://www.wsp.wa.gov/breathtest/dredocs.php) instruct officers to “administer … the Standardized Field Sobriety Tests as you were trained … [s]tandardization ensures both consistency and credibility” (page 23 of 31).

HORIZONTAL GAZE NYSTAGMUS (HGN)

Horizontal gaze nystagmus is a naturally occurring involuntary jerking of the eyeballs as they gaze side to side while following a fixed object (called a “stimulus”). When a person is impaired by alcohol, the nystagmus (the jerking of the eyeballs) is magnified or pronounced.

The officer is trained to observe the eyes of a suspect as they follow a slowly moving object such as a pen or small flashlight (referred to as a “stimulus”) back and forth (horizontally). The stimulus is held 12-15 inches in front of the subject’s nose, with the tip slightly above the eyes.

As the suspect tracks the stimulus with the eyes only (the head remains still), the officer is trained to look for three indicators (or clues) of impairment in each eye:

  • Distinct and sustained nystagmus when the eye is at maximum deviation (maximum deviation meaning the eyeball moved horizontally as far as it can go), and
  • The eye cannot follow the stimulus smoothly (like marble being rolled across a piece of sandpaper as opposed to a marble being rolled across a glass table),
  • The angle of onset of nystagmus is prior to 45 degrees from center (45 degrees being approximately when the eye is near the subject’s shoulder blade).

A Court cannot consider the results of an HGN test for substantive evidence of intoxication but may consider the test results for a “probable cause” (to arrest) determination. see State v. Doriguzzi, 334 N.J. Super. 530, 546-547 (App. Div. 2000).

WALK AND TURN

There are two stages in the walk-and-turn test: (1) the “instruction stage” and (2) the “walking stage.” In the instruction stage, the subject is directed to stand on a line with the feet in a heel-to-toe position (right foot in front of left), keeping the arms at the sides, listen to instructions and not begin until being told to do so. The subject is instructed to take nine steps, heel-to-toe in a straight line while counting the steps out loud and watching the feet, and then turn and return in the same manner.

The officer is trained to look for eight clues of impairment:

During the Instruction Stage:

  • Loses balance during the instructions (by breaking away from the heel-to-toe stance), and
  • Starts walking before the instructions are finished.

During the Walking Stage:

  • Stops while walking to steady self,
  • Does not touch heel-to-toe (by missing by at least one-half inch),
  • Steps off the line,
  • Uses arms for balance (by six inches or more),
  • During the turn, loses balance or turns improperly, and 8. Takes the wrong number (9 and 9) of steps.

Officers are trained to administer the walk-and-turn test on a reasonably hard, dry, and non-slippery surface and in a well-illuminated area. Officers are also instructed that people more than 65 years old, over 50 pounds overweight, or with physical impairments that affect their balance will have difficulty with the test. The officer is trained to ask the suspect whether they have any physical problems or disabilities.

Officers are taught to remain motionless and stand three to four feet away from the suspect during the test. Officers are trained that individuals wearing “heels more than two inches high [or] any form of any unusual footwear (i.e., flip flops, platform shoes, etc.) should be afforded the opportunity to remove that footwear prior to the test.” Officer are also trained to “consider environmental factors [e.g. wind and weather – and] location [and that] the totality of all factors should not be overlooked.”

ONE LEG STAND

There are two stages to the one-leg-stand test: (1) the “instruction stage” and (2) the “balancing and counting stage.” In the instruction stage, the suspect must stand with the feet together and the arms at their sides. The subject is instructed to stand with one chosen foot approximately six inches off the ground, toes pointed out, while looking at the elevated foot until told to put the foot down, and not stop until being told to stop (the officer should time 30-seconds).

The officer is trained to look for four clues of impairment:

  • Swaying while balancing (a noticeable sway in a side to side or back and forth motion),
  • Using arms to balance (more than six inches),
  • Hopping to maintain balance, and
  • Putting the foot down.

Like the walk-and-turn test, officers are to administer the walk-and-turn test on a reasonably hard, dry, and non-slippery surface and in a well-illuminated area. Officers are also instructed that people more than 65 years old, over 50 pounds overweight, or with physical impairments that affect their balance will have difficulty performing the test. The officer is trained to ask the suspect whether they have any physical problems or disabilities.

Officers are taught to remain motionless and stand three to four feet away from the suspect during the test. Officers are trained that individuals wearing “heels more than two inches high [or] any form of any unusual footwear (i.e., flip flops, platform shoes, etc.) should be afforded the opportunity to remove that footwear prior to the test.” Officer are also trained to “consider environmental factors [e.g. wind and weather – and] location [and that] the totality of all factors should not be overlooked.”

 

 

New Jersey DWI Trial – Not Guilty

I had a DWI trial last week in a New Jersey (Passaic County) Municipal Court. The verdict was not guilty. My client was relieved because a conviction would have created a lot of havoc on his career. I have tried hundreds of DWI cases from start to finish. Every case is different and requires specific and sudden judgment calls that have to be made as the case is ongoing.

In this case, we retained an outside “expert” witness who was available for the trial. After the State’s case was put in, I elected not to call the expert to the stand, and we (the defense) rested. I was able, through careful cross examination, to neutralize the State’s case and evidence. I determined that calling our witness would allow the defense to poke a few more holes in the State’s case. However, the prosecutor, who is very seasoned and respected adversary, would in all likelihood, have strengthened the State’s case through his cross examine of our witness; in effect turning our witness against us. I determined that the benefit of calling the expert was outweighed by the possibility of an already weak case for the State being bolstered.

On occasion, I will elect not to call a witness after the State has rested. In this case, the State called one witness and rested; we called no witnesses and rested. The State bears the burden of proof beyond a reasonable doubt. In this case, the judgment call was that the State’s case was not proven beyond a reasonable doubt. Sometimes, lawyers make the mistake of calling witnesses and eliciting testimony when the State has not proven their case. This common error simply allows the State to turn around a weak case. The decision to rest and not call our witness was the correct one. After closing arguments, the Judge found reasonable doubt and acquitted my client of DWI (N.J.S. 39:4-50).

State v. Henry – Jail For Second NJ DWI Offender – Courts Given Guidance On When To Impose Jail For DWI Defendants

In State v. Henry (Approved for Publication 02-09-2011), the Court held that a Municipal Court should weigh mitigating and aggravating factors pursuant to N.J.S. 2C:44-1 in determining whether to impose a discretionary jail sentence in a DWI case.

The Relevant Statute (2C:44-1 Criteria for Withholding or Imposing Sentence of Imprisonment) sets forth criteria used by a Judge to determine an appropriate sentence for a “criminal” offense. A DWI is not a criminal offense; but the Court chose to employ this statutory scheme given the lack of clarity in the context of a DWI.

Most Courts before State v. Henry, weighed mitigating and aggravating factors in DWI cases, but without a state-wide specific standard. The ruling provides some guidance for Courts in DWI cases where a jail term is discretionary (1st and 2nd offenses).

In State v. Henry, the Defendant had two prior DWI convictions in 1997. He was convicted again in 2009. Because the gap between the 2nd and 3rd convictions was more than ten years, Henry was eligible (pursuant to the NJ DWI Statute) to be treated as a 2nd DWI offender (called a “step-down”). He was sentenced to 30 days in jail, which was reduced to 14 days on Appeal.

It was particularly significant that the Court viewed Henry’s high blood alcohol reading (.30%) which they called “extraordinarily high”, as an “aggregating” factor. The Court found that such a high reading “posed a significantly greater risk of harm to the public.” The Court also found as aggravating that the defendant was “an untreated alcoholic”, and that he had a criminal record (for possessing a gun which involved intoxication).

The Court also found that despite the “step-down”, that Court could consider that Henry was a third offender because he “poses a greater risk of re-offending than a person with two offenses.” Last, the Court found as an aggravating “the need to deter.”

In contrast, the Court found as mitigating factors “the defendant’s persistent alcoholism” (while pointing out that he “has the responsibility to seek treatment diligently and consistently”), and his “willingness to cooperate” (e.g. he was cooperative when arrested, and he cooperated by entering a plea), that he will perform community service, and lastly, that jail would adversely impact the defendant’s mother who he cares for.
Mercer County Superior Court Judge Mitchel Ostrer who wrote the opinion, is a diligent judge. I have appeared before Judge Ostrer and have respect for him. The opinion reflects obvious thought and deliberation. However, I respectfully disagree with some of the tenets of the ruling.

When I was interviewed by the New Jersey Law Journal regarding the opinion, I expressed some concerns with the ruling. The DWI Statute regarded Henry as a 2nd offender (“stepped down” because his 2nd was more than ten years from his 3rd). It is troubling that the Court would therefore find as an aggravating factor, that he was a 3rd offender. This seems to be at odds with the Statute – and simply unjust because he should be treated the same as any other “2nd offender.” As an aside, the Court also found as a mitigating factor, Henry’s plea. This is in direct conflict with 2C:44-1 which provides that “A plea of guilty by a defendant or failure to so plead shall not be considered in withholding or imposing a sentence of imprisonment.” The ruling in this regard tends to force a defendant to enter a plea – not exercise his constitutional right to a trial in exchange for favored treatment. There is a body of law (starting with the statute) that prohibits a court from imposing a greater sentence to a defendant who chooses to go to trial (a so-called “trial tax” – as opposed to plead guilty. While the ruling provides some needed standards to be followed, the ruling has the capacity to create injustice for DWI Defendants.

Driving With A Suspended License Following NJ DWI Conviction

Joe Giudice, husband of “Real Housewives of New Jersey” star Teresa Giudice was sentenced to 10 days in the Morris County jail for driving with a suspended license. Mr. Giudice’s license was under suspension following a dwi conviction in Montville New Jersey.

According to New Jersey Law N.J.S. 39:3-40(f)(2), a defendant who is convicted of driving while under suspension for a dwi conviction “shall … have his license … suspended for an additional period of not less than one year or more than two years, and shall be imprisoned in the county jail for not less than 10 days or more than 90 days.”

I have handled many cases where clients are charged with driving under suspension for dwi, and have successfully argued around the 10 to 90 day jail term. The statute (N.J.S. 39:3-40) does not prohibit a jail alternative such as a county labor assistance program, making such an alternative to jail a viable sentence. I have also been able to get the charge reduced to a lesser charge because plea-bargaining of the charge is permitted (unlike the nj dwi statute where plea bargaining is prohibited). A jail term can also be avoided where the plea was made without counsel. In that case a petition can be made in the court where the dwi conviction occurred to get a protective order consistent with State v. Laurick, 120 N.J. 1, (1990), certiorari denied 111 S.Ct. 429, 498 U.S. 967, 112 L.Ed.2d 413 (1990). The jail term can also be avoided where the dwi plea was taken in contradiction of New Jersey Court Rules and the Defendant’s constitutional rights. In that case, a petition can be made in the the court where the dwi conviction occurred to vacate the plea altogether. Lastly, sometimes, the underlying case is faulty – for example, where the stop was made without an adequate constitutional basis. A successful challenge to the charge of driving while suspended (for a dwi conviction) is possible. I am not sure whether a successful defense could have been mounted for Mr. Giudice’s charge. I am going to try to get the records from the Lincoln Park New Jersey Police and Court for curiosity sake.