DWI Appeal

May 24, 2020

New Jersey Court Discusses Legality of Blood Draws in DWI Cases

In many instances, the police will seek blood draw from a person suspected of DWI. The police must obtain a person’s consent or a warrant prior to obtaining a blood draw, however, and if the police fail to comply with the proper procedures for obtaining a blood sample, the results of any test on the sample may be precluded from evidence at trial. In a recent New Jersey case, the court discussed the issue of whether an improperly obtained blood draw precludes the state from introducing evidence from a second blood draw, as the fruit of an illegal search. If you were charged with DWI in New Jersey following a blood draw, it is in your best interest to consult a New Jersey DWI defense attorney regarding whether you may be able to argue that the evidence against you should be precluded.

Facts of the Case

Reportedly, the defendant was involved in a fatal car accident. When police officers arrived at the scene, they observed that the defendant had an unsteady gate, glassy eyes, and an odor of alcohol. The defendant was transported to the hospital due to injuries. When the defendant was first admitted to the hospital, his blood was drawn pursuant to the request of an officer. He did not sign a consent form until after his blood was drawn. A second officer arrived at the hospital and spoke with the defendant and the passenger who was with the defendant in his car at the time of the accident, who informed the officer that she and the defendant had been drinking alcohol and smoking marijuana prior to the accident.

It is alleged that the officer learned that a blood draw had been taken, but was concerned whether the defendant’s consent was properly obtained. Thus, the officer sought and obtained a warrant for a second blood draw. He did not know the results of the first blood draw at the time he sought a warrant. Prior to trial, the defendant filed a motion to suppress the results of both blood draws. The court granted the motion as to the first blood draw but not as to the second. The defendant was convicted of vehicular homicide, after which he appealed the denial of his motion to suppress the second blood draw. Continue reading

May 19, 2020

New Jersey Court Discusses Accuracy of Breath Tests in DWI Cases

by Jonathan F. Marshall

Many New Jersey DWI charges arise out of breath tests that indicate a blood alcohol concentration over the legal limit. Thus, if a defendant charged with DWI can prove that a breath test was inaccurate, he or she may be able to obtain a dismissal of his or her DWI charges. A defendant seeking to prove the results of a breath test are not reliable faces a high burden, however, as demonstrated in a recent New Jersey appellate court case. If you are charged with committing a DWI in New Jersey, it is prudent to speak to a knowledgeable New Jersey DWI defense attorney to discuss what defenses you may be able to argue to avoid a conviction.

Factual and Procedural History

Allegedly, police officers observed the defendant outside of his vacation home early in the morning. When they spoke with the defendant, they noticed he smelled of alcohol and had slurred speech and bloodshot eyes. The officers instructed the defendant not to drive but observed him driving with no headlights an hour later. He was arrested for suspicion of DWI and transported to the police station, where he underwent a breath test, which revealed his blood alcohol concentration to be .13%.

It is reported that the defendant was charged with and convicted of DWI. As it was his third DWI offense, the defendant was sentenced to a prison term of 190 days, and his license was revoked for ten years. He then appealed, arguing that the breath test that he was administered was unreliable, and therefore his conviction should be vacated. The court rejected the defendant’s arguments and affirmed his sentence. Continue reading

May 10, 2020

New Jersey Court Discusses Prior Out of State DWI Convictions for Sentencing Purposes

by Jonathan F. Marshall

Under New Jersey law, a person convicted of a second or subsequent DWI may be subject to additional penalties. Further, a defendant may face additional penalties if he or she was previously convicted of a DWI or a similar offense in a state other than New Jersey. Recently, a New Jersey appellate court addressed what constitutes a similar offense for purposes of subsequent convictions in a case in which the defendant argued that a prior conviction for drunk driving in New York should not count towards his penalty assessment. If you are accused of a second or subsequent DWI offense in New Jersey, it is advisable to consult a seasoned New Jersey DWI defense attorney to talk about your potential defenses.

Facts of the Case

It is reported that the defendant was charged with and convicted of committing a DWI offense. The defendant had a prior New Jersey DWI conviction as well as a conviction for driving while his ability was impaired in New York. Thus, the court considered the defendant as a third time DWI offender and sentenced the defendant to a 180 day prison sentence and a ten-year license suspension. The defendant appealed, arguing that the trial court erred in deeming his New York conviction a violation of a substantially similar law. On appeal, the court affirmed.

Violation of a Substantially Similar Nature

Under New Jersey’s DWI law, a conviction for violating a law in another jurisdiction that is substantially similar in nature to New Jersey’s DWI law is considered a prior conviction for New Jersey DWI purposes, unless the defendant produces clear and convincing evidence that establishes that the conviction in the other jurisdiction was based solely on a violation of a law involving a blood alcohol concentration of less than .08%. Thus, New Jersey courts have held that a New York driving while ability is impaired conviction is substantially similar to driving under the influence pursuant to New Jersey law for the purposes of sentence enhancement, unless the defendant can prove otherwise. Continue reading

April 26, 2020

New Jersey Court Discusses Reasonable Suspicion in DWI Cases

by Jonathan F. Marshall

Under New Jersey law, prior to conducting field sobriety tests on a person, the police must have reasonable suspicion that the person is intoxicated. Odtherwise, the results of the field sobriety tests may be inadmissible. There is no single fact that constitutes sufficient grounds to reasonable suspicion, however, and in some instances, numerous factors that in and of themselves are insufficient to raise suspicion may combine to justify a DWI investigation, as shown in a recent case arising out of New Jersey. If you are charged with committing a DWI offense in New Jersey, and you believe the police did not have sufficient grounds to conduct an investigation, it is prudent to confer with a trusted New Jersey DWI defense attorney regarding your rights.

Factual Background

Allegedly, a police officer observed the defendant making an illegal left hand turn into the parking lot of a drug store, after which the officer stopped the defendant. When he approached the car, the officer noticed an odor of alcohol emanating from the vehicle but believed it may be coming from one of the passengers. The defendant denied drinking, but the officer administered a horizontal gaze nystagmus (HGN) test on the defendant regardless, while the defendant was seated in the driver’s seat. The officer observed a lack of smooth pursuit during the test, after which he asked the defendant to exit the vehicle. The defendant then submitted to field sobriety testing.

It is reported that the defendant was ultimately arrested and charged with driving while intoxicated. He filed a motion to suppress the result of his field sobriety tests, which the court denied. The defendant then entered a conditional guilty plea and appealed the denial of his motion to suppress. Continue reading

April 20, 2020

New Jersey Court Discusses Mitigating Factors in DWI Sentencing

by Jonathan F. Marshall

In some cases in which a defendant is charged with DWI, the State has compelling evidence, and it is prudent for the defendant to enter into a plea agreement to reduce the possibility of the imposition of a significant penalty. Thus, a defendant may plead guilty in exchange for a reduced sentence. Often, however, even though the defendant and the State entered into a plea agreement, they will disagree as to what constitutes an appropriate sentence, and ultimately what sentence the defendant receives is up to the judge. While a sentencing judge has discretion in determining a suitable penalty, he or she nonetheless must consider all relevant factors in assessing what is appropriate. This was demonstrated in a recent New Jersey DWI case in which the appellate court overturned a sentence imposed by the trial court due to the judge’s failure to consider all mitigating factors. If you are charged with a DWI offense in New Jersey, it is wise to speak with a vigilant New Jersey DWI defense attorney to discuss your alternatives for protecting your interests.

Factual and Procedural Background

Allegedly, the defendant was driving his vehicle at approximately 8:00 pm when he struck and killed a pedestrian that was walking through an intersection. When police arrived at the scene, they interviewed the defendant, who smelled of alcohol and was lethargic. The defendant agreed to submit to a breath test, which revealed his blood alcohol content to be 0.08 %. He was ultimately charged with third-degree vehicular homicide and driving while intoxicated.

It is reported that the defendant entered into a negotiated plea agreement with the State. At the sentencing hearing, he was advised that the State intended to request that he be sentenced to probation and be required to serve 364 days in a correction center as a condition of his probation. The defendant’s attorney requested that the court sentence the defendant to probation only. During the sentencing hearing, the court refused to consider all mitigating factors and imposed the State’s proposed sentence on the defendant. The defendant appealed. Continue reading

April 13, 2020

New Jersey Court Rules Tractors Are Motor Vehicles Under the DWI Statute

by Jonathan F. Marshall

People often refer to New Jersey as the Garden State, in part due to the high number of farms throughout the state. As such, it should come as no surprise that many people who live in New Jersey own tractors. Although people typically do not use tractors as a primary means of transportation, the New Jersey police can nonetheless charge a person with a DWI for operating a tractor while intoxicated as demonstrated in a recent New Jersey appellate court ruling. If you are faced with DWI charges in New Jersey arising out of your operation of a non-traditional vehicle, it is prudent to speak with a capable New Jersey DWI defense attorney regarding your rights.

Factual Background

It is alleged that a police officer stopped the defendant while he was operating a tractor on the shoulder of a highway. The tractor was not insured or registered with the Department of Motor Vehicles. The defendant agreed to submit to a breath test, which revealed his blood alcohol content to be 0.32%. Additionally, he admitted that he was traveling from a bar where he consumed five to six beers back to his home. The defendant was charged with DWI but argued that he was not guilty, on the basis that tractors do not fall under the definition of motor vehicles as defined by New Jersey law. The defendant was found guilty, after which he appealed.

Definition of a Motor Vehicle for New Jersey DWI Purposes

The sole issue on appeal was whether a farm tractor qualifies as a motor vehicle for purposes of the New Jersey DWI statute. Under New Jersey law, a person can be convicted of driving while intoxicated if he or she operates a motor vehicle with a blood alcohol content of 0.08% or higher or while under the influence of alcohol. The court noted that broad readings are afforded to the terms of the DWI statute, to effectuate the intent of the legislature to thwart harm caused by drunk driving accidents. Continue reading

March 20, 2020

New Jersey Court Discusses Evidence Needed to Convict a Defendant of a Drug-Related DWI

by Jonathan F. Marshall

Although many people think of DWI arrests as arising out of the operation of a vehicle while intoxicated due to the consumption of alcohol, a person can be charged with a DWI for driving or operating a vehicle while under the influence of other substances that impairs his or her ability to drive safely, such as marijuana. Recently, an appellate court in New Jersey discussed what is considered adequate evidence to convict a defendant of a marijuana-related DWI offense. If you live in New Jersey and are charged with a marijuana-related DWI, it is advisable to consult a New Jersey DWI defense attorney dedicated to helping DWI defendants protect their interests.

Factual Background

It is reported that the defendant was stopped after an officer observed him drifting over the double yellow line on a highway. When the officer approached the vehicle, he reportedly smelled both raw and burnt marijuana. The defendant’s speech was slow and slurred, and he reported that he was swerving because he was trying to avoid potholes. The defendant denied smoking marijuana and stated that someone else had driven his vehicle. The officer administered field sobriety tests, which the defendant failed. The officer then searched the defendant’s vehicle and found a bag of marijuana, an e-cigarette with a marijuana concentrate cartridge, and two marijuana cigars. The defendant was arrested and charged with DWI and other related offenses. He was convicted, after which he appealed, arguing the evidence was insufficient to convict him of DWI.

Evidence Sufficient to Convict, a Defendant of a Marijuana-Related DWI Offense

On appeal, the defendant argued, in part, that the trial court erred in allowing the arresting officer to testify as an expert witness, violating his due process rights. The appellate court disagreed, finding that the State did not introduce the officer as an expert witness at trial, but that during the appeal to the Law Division it argued that the officer should be regarded as an expert due to the extent of his skills, training, and experience, and the Law Division agreed. The court noted that under New Jersey law, police officers can be qualified as experts on marijuana intoxication, due to their training. Thus, the court found that no reversible error occurred. Continue reading

March 16, 2020

New Jersey Court Clarifies Operation for Purposes of DWI Statute

by Jonathan F. Marshall

An issue commonly disputed in New Jersey DWI cases is whether the State has sufficient evidence to establish that the defendant was operating a vehicle while intoxicated. Due to several recent unpublished opinions set forth by the Appellate Division of the Superior Court of New Jersey, the court set forth a published opinion in which it clarified in explicit terms what constitutes operation for the purposes of a DWI conviction. If you reside in New Jersey and are faced with DWI charges it is prudent to confer with a vigilant New Jersey DWI defense attorney to assess what options you may exercise to protect your rights.

Facts Surrounding the Defendant’s Arrest

It is alleged that the police were called to a grocery store parking lot to investigate the defendant, who was sleeping in his car with the engine running. The officer awoke the defendant, who smelled like alcohol and advised that he had been sleeping for about half an hour. The officer also observed several prescription pill bottles on the passenger seat. The defendant agreed to submit to numerous field sobriety tests, all of which he failed. As such, he was arrested and charged with DWI and refusing to submit to a breath test. Following a trial, he was convicted on both charges. He then appealed, arguing that the State could not prove he was operating his vehicle at the time of his arrest.

Operating a Vehicle Under the New Jersey DWI Statute

On appeal, the court noted that while a violation of N.J.S.A. 39:4-50(a) is usually referred to as a DWI, the statute does not actually mention driving as an element of the crime that must be proven in order to obtain a conviction. Rather, the statute merely prohibits a person from operating a vehicle while under the influence. The court noted that operation has been broadly interpreted and includes more than just driving. In other words, it includes sleeping or sitting in a car with the engine running, even if the car is not moving. Continue reading

March 6, 2020

Court Discusses Grounds for Recusal in New Jersey DWI Cases

by Jonathan F. Marshall

One of the tenets of criminal law is that a defendant has the right to a fair and impartial trial. Thus, if a DWI defendant believes that a judge is unduly prejudiced or biased against the defendant, he or she can file a motion for recusal. Recusal is only granted in limited circumstances, however, as demonstrated in a recent case in which a New Jersey appellate court affirmed the defendant’s DWI conviction following the denial of a motion for recusal. If you are faced with DWI charges, it is advisable to meet with a proficient DWI defense attorney to discuss the rights you are afforded under the law.

Procedural Background of the Case

It is reported that the defendant was charged with DWI in December 2017. The matter was listed for a hearing in May 2018; however, the defendant’s attorney failed to appear due to a medical issue. The day prior to the hearing, an associate from the defendant’s attorney’s office informed the court that none of the attorneys from the firm were available to represent the defendant at the hearing, and no one would appear on behalf of the defendant.

Allegedly, during the hearing, the judge expressed concern regarding the scheduling issue and the late notice provided by the defendant’s attorney regarding his inability to appear. The matter was relisted. At the subsequent hearing, the defendant’s case was not addressed by the court until several hours after it was scheduled to be heard. The defendant’s attorney expressed concerns that the delay was punishment for his failure to appear at the earlier hearing. He further stated he believed the judge had a conflict of interest and filed a motion for recusal. The motion for recusal was ultimately denied, and the defendant entered a conditional guilty plea. The defendant’s sentence was stayed pending appeal.

February 24, 2020

Court Discusses Operation of Vehicles in New Jersey DWI Cases

by Jonathan F. Marshall

One of the key elements of a New Jersey DWI charge is the operation of a vehicle. If the State is unable to prove this element, a person charged with DWI should not be convicted. The Superior Court of New Jersey, Appellate Division, recently re-affirmed, however, that operation is not limited to actually driving a vehicle, and a defendant can be found to be operating a vehicle even if the vehicle was in park at the time of the police’s investigation into the matter. If you are charged with DWI, even though you did not drive a vehicle while intoxicated, you should consult a proficient New Jersey DWI defense attorney to discuss what defenses you may be able to assert.

Factual Background

It is reported that a police officer observed the defendant sleeping in the driver’s seat of a car that was parked in the lot of a convenience store. The car was parked properly, but the engine was running. The officer attempted to wake the defendant many times before he finally awoke. When the defendant opened his window, he smelled of alcohol. It took him several attempts to turn off his vehicle, and his conversation with the officer was incoherent.

It is alleged that the officer performed field sobriety tests on the defendant, which the defendant failed. He was subsequently arrested and charged with DWI and reckless driving. He was convicted of DWI, second offense. He then appealed, arguing that the State failed to prove he operated a motor vehicle while under the influence of alcohol. Continue reading