New Jersey Traffic and Criminal Law

Police officers training as certified phlebotomists for DWI crash cases

       On October 31st of 2008, I posted an entry about the difficulties of the prosecution of proving DWI cases involving blood draws--  that is, where the blood alcohol content (BAC) is measured by blood analysis in the New Jersey State Police Laboratory.  In those cases, the nurse at the hospital and the chemist must be available for cross-examination by the defendant.

       Of course, the chemists are state employees working in a civilian capacity, but also work for a division of the state police.  So, when the prosecutor asks that they appear in court to testify, they usually appear unless they have a conflict with another court.

       But the nurses are generally ignoring subpoenas to testify.  My guess is that they are not being compensated by their hospital employer, they work crazy hours, have families and just want their days off-- like all of us. 

       Some judges are suppressing the BAC results, which may be tantamount to a dismissal, but other judges are taking a hard-line approach and threatening to issue arrest warrants for the nurses to appear in court.

       In the mean time, the police and county prosecutor's office, at least in Gloucester County, New Jersey, are implementing a new program.  A hand-full of police officers are being trained as certified phlebotomists.  These officers will be on-call to respond to emergency rooms where DWI defendants are being treated.

       This program is in it's infancy stage, but is sure to raise an assortment of legal issues.

DWI on sleeping pills; it can happen

       The New Jersey "driving while intoxicated" (DWI) statute lists more than just alcohol as a substance that can lead to a guilty finding.  However, the state will have a greater challenge in prosecuting cases involving those elements other than alcohol.

       Specifically, the code reads, "a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug" is in violation of the law.  Alcoholic beverages, narcotics and hallucinogenic drugs seem relatively straightforward-- or least they seem to be for the court.

       But operating under the influence of a "habit-producing drug" presents challenges for the state to prove.  If, for example, a driver was arrested for DWI after weaving down the road, failing the balance tests and stating that he or she had taken sleeping pills, a conviction might not result--especially if a defendant were to exercise his or her right not to incriminate by talking.

       So, could the prosecutor prove that the sleeping medication was habit-forming?  The chances are certainly reduced and, therefore, a conviction would be more difficult. 

       These cases where an operator is charged for driving under the influence (of non-narcotic) drugs are, however, becoming more and more frequent.

Court interprets 'weaving' for DWI stop

       An arrest for drunk driving almost always is preceeded by a motor vehicle violation such as speeding, weaving in a lane or running a red light.  And, of course, the police officer must have a good reason to execute a motor vehicle stop.

       In a decision last week, the Law Division interpreted the statute that accounts for numerous DWI arrests: N.J.S.A. 39:4-88(b), or failure to maintain a lane.  The statute reads, "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety."

      In State v. Woodruff, the court kind-a, sort-a defined the circumstances under which one could be stopped or pulled over for weaving in a lane.  The court found that a vehicle need not perfectly maintain a lane and that there are times where an operator can legally weave or swerve in a roadway.

       For instance, an operator may legally deviate from the lane where there is an obstruction in the roadway, the road is narrow and the vehicle large or where it is extremely windy.  The court said: "one or two deviations from a lane may or may not constitute a violation, depending on the circumstances."

       So, it is conceivable that the defendant can challenge a motor vehicle stop and the resulting DWI arrest, if the weaving was minor and explained by fact-sensitive circumstances.  However, the defendant's attorney must contend with the low standard of "reasonable and articulable suspicion" for the stop.

       That is, can it be disproved that the officer had a good reason for the stop?  For the most part, that is difficult to prove, but not impossible.

      

 

DWI cases with blood draws pose challenges to Prosecutors

       Usually, when someone is arrested for drunk driving, the prosecutor and the state rely upon a chemical breath test, like the Alcotest, to prove intoxication.  There are, however, some circumstances when the police must depend on a blood test to establish the defendant's blood alcohol content (B.A.C.).

       For example, if the police respond to an automobile crash where the operator/accused is injured, even if those injuries are not real serious, then that person is usually taken to the local emergency room under police custody.  And this is where the state's case against the operator for DWI becomes increasingly complicated and sometimes difficult to prove.

       If the defendant's attorney demands and places the state on notice, the prosecutor must establish the chain of custody and the defendant has the right to confront (at trial) anyone who "touched" the blood evidence.  At a minimum, those include the police officer, the nurse, the evidence officer and the state police chemist.

       Under the Confrontation Clause, a defendant has the right to cross examine or question anyone who accuses them of violating the law.  Essentially, the chemist who analyzes the blood and establishes a certain B.A.C. is "accusing" that person.

       And the nurse must also testify that he or she followed certain medical protocols in drawing the blood, mostly to establish that alcohol swabs were not used to prep the skin, which some would argue increases the chance of an elevated B.A.C. reading.

       The problem in prosecuting these cases is this:  it is harder to get four people to show in court at the same time then it is for one police officer who happens to be the arresting officer and the breath test operator.  While all of the individuals except the nurse are state employees, every link in the chain must perform or the entire chain (and the case) fails.

       State employees and police officers almost always appear in court; however, the nurse is a different story.  Emergency rooms are busy places, hospitals typically do not pay their nurses to attend court and "days off" are highly valued.

      

Superior Court affirms no plea bargains for DWIs

       With very few exceptions, plea bargains are permitted in municipal court.  The one big exception, drunk driving and driving under the influence, was recently affirmed in State v. Rastogi, decided by the Law Division yesterday. 

       According to New Jersey Plea Agreement Guidelines, "[n]o plea agreements whatsoever will be allowed in drunken driving or certain drugs offenses.  Those offenses are: [a.] Driving while under the influence of liquor or drugs (N.J.S.A. 39:4-50)".  These guidelines apply to plea agreements in municipal court.

       The Superior Court in State v. Rastogi, however, broadened the prohibition of DWI plea bargains to include county prosecutors and their assistants. These types of traffic cases typically do not appear in Superior Court, unless they are accompanied by a more serious charge.  The garden variety case would be a DWI stop where the defendant happens to possess cocaine, an indictable offense.

       The Rastogi court rationalized that the strong public policy stance regarding drunk driving should apply to county prosecutors as well.  So, while murder, rape and armed robbery charges will continue to be "plea bargain-able" (if there is such a word), driving while under the influence cases must go to trial unless there is a guilt plea.

     Download state_v. Rastogi.pdf

To avoid jail for 3rd DWI offenses, Post Conviction Relief may be the only option

       Because the penalties for second and third DWI offenses are so harsh, it often makes sense for an attorney to challenge the validity of prior convictions-- especially if the pending drunk driving charge is difficult or impossible to defend.  This challenge of prior convictions is commonly called post conviction relief or PCR.

       In New Jersey, for example, a third offender must be sentenced to 6 months in jail with very few exceptions.  One exception is day-for-day credit, up to 90 days, for in-patient alcohol rehabilitation.  However, 90 days of incarceration must first be served before becoming eligible for rehab credit.

       So, the attorney typically goes back in time and looks for ways to challenge any previous guilty plea.  He or she looks for: 1.) pleas without an attorney; 2.) pleas that were taken quickly after an arrest; and 3.) pleas that were taken by a judge without the defendant having been fully advised of legal rights or without a complete admission to the DWI offense.

       If a prior conviction can be "undone" or vacated, then the penalties for the new offense may not be enhanced to the level of a 2-10 year loss of license and/or extensive jail time.  It is, however, difficult for an attorney to prevail, unless it can be shown that a defendant's constitutional rights were violated.

       A common compromise that lawyers try to achieve is to get an order from a court that essentially says: "the prior conviction is not undone, but the offender should not be jailed for a third offense."  Typically, the court rationalizes that jail should not apply if constitutional rights were previous violated.

The un-lucky license plate

        Look real closely at the license plate to the left.  A very similar plate almost sent a client of mine to jail for 6 months, although he had a  cover with the imprint "Jesus," instead of "South Shore". 

       The license plate to the left obscures New Jersey and "Garden State", which-- believe it or not --is illegal even though it would be obvious to an officer that it is a New Jersey registration. 

       My guy was driving home from a friend's house after having had a few cocktails and was operating his vehicle absolutely perfectly (I know; I watched the video over and over), but the court ruled that he was lawfully stopped by the Trooper.  Lawful because the license plate frame covered the writing, even though one could read the state and the numbers.

       At trial for a third offense, he was found "not guilty" of drunk driving, but it was a close one.  So, equipment violations can and have clearly led to a significant percentage of DWI arrests.

         

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.

      

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.