New Jersey Traffic and Criminal Law

Intent to Operate and Drunk Driving in N.J.

       The charge itself--  drunk driving or driving while intoxicated --seems to suggest that a person must first be found to have operated a motor vehicle.  But in New Jersey, the word "operate" has a fairly broad meaning.

       In reality, the word "operate" has been interpreted by the courts to also include intent to operate a motor vehicle.  That is, someone can be found guilty of driving while intoxicated without actually having driven a motor vehicle.

       And one might ask, how could that happen?  Here is an example: a person stumbles out of a bar at 2:00 in the morning, staggers to his car, puts the the key in the door to unlock it and is stopped by a police officer.  This person is found to be drunk, but the officer prevented operation.

        In a published case, the New Jersey courts found "intent to operate" and said that this is sufficient for a conviction.

      

Erase points, take safe driving course

       There is a fairly painless and cheap way of erasing motor points from your driving history.  Under New Jersey statute, a driver can wipe away two motor vehicle points-- without going to court, paying a high fine or paying attorney fees --by taking a safe driving course.

       These courses are sponsored by organizations such as AAA or may be taken on-line.  The fee for the courses seem to average $50.00, which is worth the savings in automobile insurance premiums or costs of surcharges.

       Many individuals charged with minor violations appear in court to save points, but often end up paying a $250.00 surcharge associated with a plea bargain to a no-point violation anyway.

       There are limitations on the number of times one may be eligible for point reductions with these courses and no driver may have less than 0 points.

Does "dimissed" really mean dismissed?

       Recently, the New Jersey Motor Vehicle Commission began assessing motor vehicle points for tickets marked "dismissed by way of merger."  This form of dismissal was commonplace when a defendant plead guilty to one charge and the remaining were dismissed.

       For example, if a defendant were to plead guilty to DWI, then-- most likely --the prosecutor would dismiss a reckless driving charge by merger, because the reckless driving charge is considered a "lesser included" offense to driving while intoxicated.

       Now, the proper way to ensure a dismissal and no assessment of motor vehicle points is for the prosecutor to make a motion for direct dismissal."

      

Minor Drug Offenses: Defendants get One 'Mulligan'

       Penalties for drug offenses can be very steep in New Jersey, especially as it relates to the suspension of driving privileges.  Drivers can loose their right to operate a motor vehicle for 6 months to 2 and one-half years, if they are found guilty or plead guilty, even to minor drug offenses.

       Minor drug offenses include possession of marijuana of under 50 grams and sometimes possession of illegal prescription drugs, cocaine and heroin.  While possession of illegal prescription drugs, cocaine and heroin is an Indictable offense, county prosecutors may remand or send these charges to municipal court.

       The severe penalties and a conviction of such offenses can, however, be avoided for first-time drug offenders.  The Conditional Discharge program allows first-time minor drug offenders to place their charge on "hold" and to enter into a probationary program.

       Typically, the offender must report to probation a few times for a period of one year, remain drug free and avoid any new criminal charges.  Any "hot" urine tests, failure to report to probation or new charges most likely will re-open the original charge for prosecution with full penalties and loss of driving privileges.

       Upon successful completion of the Conditional Discharge program, the court then dismisses the drug charge.  Six months after the dismissal, the participant is then eligible for expungement of the drug arrest.

Arrest Protocols for DWI

        What's wrong with the picture to the left? 

       In all DWI cases where the defendant is expected to submit to the Alco-Test (or breath test) to determine blood alcohol content, the arresting officer must be able to testify that the accused did not place any foreign substances into his or her mouth.

       Cuffing a defendant in the front makes it increasingly difficult for an officer to testify with certainty that nothing was placed in the mouth for a period of 20 minutes before submission to the Alco-Test.  Because, of course, the hands can reach the mouth.

       Most officers know this, and are also trained to restrain the accused with the hands placed behind the back for safety reasons.  However, mistakes and exceptions are made.  Exceptions usually apply to obese defendants or those that have health issues.

     Unless a person arrested for DWI is cuffed in the rear, the state may have difficulties in establishing standards for the admissibility of the Alco-Test reading.

      

Psycho-physical tests in DWI cases

      As a prosecutor and defense attorney, I have had the opportunity to view hundreds of video tapes of DWI arrests.  And most of the time there is one common element.

       The police officer usually says, "sir [or madam], would you please step out of your vehicle.  I need you to perform some balance tests, so I know you are safe to drive."  What the police officer is really saying is, "would you perform the balance tests so that your performance will be used to further establish probable cause for your arrest and provide evidence at trial for your conviction." 

       In New Jersey, we have an Implied Consent statute wherein all drivers have agreed, when they were issued a driver's license, to submit to an alcohol breath test when a police officer has reason to believe that he or she has operated a motor vehicle while intoxicated.  But no such law exists for the submission to field sobriety tests.  In other words, anyone is free to say "thanks, but no thanks."

       In a recent Monroe Township case that I prosecuted, the accused had refused to perform any field sobriety tests, which almost led to a "not guilty" finding after trial, because the breath test was inadmissible because of technical errors.

       As a prosecutor, I like to have solid psycho-physicals testimony to reinforce the breath results.  As a defense attorney, a client that politely refuses potentially gives me something to work with.

New Jersey: GDL Drivers Loose Plea Bargain Option

 

     Hot off the press: New Jersey's Attorney General just announced that GDL drivers would no longer be eligible to plead guilty to lesser, no point violations as part of a plea bargain in municipal court.  Typically, GDL (graduated driver's license) drivers are teens who already face high insurance costs.

     "It is entirely appropriate that [probationary drivers] be held strictly accountable for all motor-vehicle violations," cites the directive from the chief prosecuting attorney.  The directive does not, however, prohibit prosecutors from dismissing charges in the interest of justice.

     The directive, sent to all municipal prosecutors throughout the state, is the first recommendation of the Governor's Teen Driving Study Commission.

     Commonly called a "Cinderella" license, teens are prohibited from driving after 12:00 midnight and before 5:00 a.m. and having more than one non-household passenger.  These rules apply to drivers who have not attained a full, basic driving license.

     Provisional drivers can expect further recommendations from the Commission and directives from the Attorney General's office.