DWI Law and Legislation

July 30, 2011

DWI Legal Defense Update: Do You Really Think You’re Safe with a BAC Below 0.08 Percent?

First off, and we’ve said it here countless times, whether a motorist is arrested and charged with DWI in Atlantic, Essex, Hudson or Bergen County, the consequences of a drunken driving conviction are the same across the Garden State and a conviction can be very damaging to an individual’s personal relationships, business career and standing in his or her community. With that said, it’s important to mention that being charged with DWI and being convicted for drunken driving are two separate things.

Drunk driving penalties aside, no one wants to have a DWI or drug DUI on their record. And while most people would choose to fight an impaired driving charge in court, the ones who go it alone take a big gamble without representation. In fact, there are instances where a motorist may not think that he or she has much to worry about because their breath test results were under the so-called legal limit of 0.08 percent blood-alcohol content (BAC), yet the prosecution may have the upper hand.

As New Jersey DWI defense attorneys, we know drunk driving law and see it in action on a daily basis. Being familiar with the various jurisdictions across the state can also be an advantage, although the law is the same regardless of the county in which one is arrested. We also handle drug DUI cases, which can include impaired driving while on prescription medication, as well as marijuana possession in a vehicle and other kinds of DUI, such as those cases related to use of controlled dangerous substances (CDS).
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July 28, 2011

US Supreme Court: Breathalyzer Results Not Valid Evidence Without Operator Testimony to Back It Up

by Jonathan F. Marshall

In cases where a motorist has been arrested for drunken driving, one of the more significant pieces of evidence for the state is the resulting blood-alcohol content (BAC) measurement from the breathalyzer or Alcotest device employed by police agencies all across the Garden State. One thing to keep in mind, however, is that this machine on its own cannot convict a motorist of driving while intoxicated.

As New Jersey drunken driving defense lawyers, I and my staff of experienced DWI attorneys have decades of experience representing driver accused of DWI and drug DUI. Regardless of whether you live in Ocean, Monmouth, Sussex, or Bergen County, when a police officer detects evidence of alcohol consumption by a driver, the resulting DWI arrest and drunken driving summons can set the stage for events that can change a person’s lifestyle, career and even their personal relationships.

Just last month, the U.S. Supreme Court made a ruling that may be of some help to those accused of drunken driving, especially if their BAC level was measured on a breathalyzer machine. According to news articles, the recent U.S. Supreme Court decision (Bullcoming v. New Mexico) made it clear that any results from an Alcotest machine or other breath testing device must be backed up by the operator’s testimony in court, or the results cannot be used as evidence against the defendant.

In this case, Donald Bullcoming was arrested on suspicion of DWI following a traffic accident with another vehicle. A state forensics laboratory tested the driver’s blood and determined that it his BAC was well over the legal limit. Taking his case to trial, Bullcoming’s conviction came without the testimony of the state technician who ran the BAC test. That individual was apparently not available due to being on unpaid leave. In lieu of testimony, state prosecutors introduced the technician’s written report combined with testimony from another technician familiar with the lab’s testing procedures.
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July 10, 2011

Camden County, NJ, DUI-DWI Defense News: Winslow Twp. Police Tally Drunken Driving Arrests

by Jonathan F. Marshall

No one should be too surprised to learn that the Click It or Ticket traffic safety campaign here in the Garden State caught more than the occasional unbelted motorist. As New Jersey DWI defense lawyers, I and my colleagues know that the seat belt use law can result in police officers catching potentially drunken drivers as well.

In addition to the state’s use of sobriety roadblocks and drunk driving checkpoints in the late evening and early morning hours, the latest seat belt enforcement campaign is likely to result in numerous intoxicated driving arrests and possibly a number of convictions for driving under the influence of alcohol. Of course, those individuals who take the wheel while impaired, either knowingly or unknowingly, by the effects of prescription drugs can also be arrested for driving under the influence (drug DUI) just as easily.

A while back, the township of Winslow, NJ, announced the results of their part in the national safety belt enforcement effort, sponsored New Jersey’s Division of Highway Traffic Safety, and which lasted from late May through early June of this year. The statistics bear out the relative success of the campaign. In Winslow Township alone, police officers gave out more than 400 traffic summonses.

Of those tickets, almost one-third were for primary seat belt violations, which may come as a surprise given the marketing that went into this effort. In addition, 32 tickets were issued for excessive speed and another 30 were fore driving on a suspended license. Nine drivers were arrested for operating a motor vehicle while intoxicated (DWI) and six people were taken into custody for drug-related offenses, such as marijuana possession.
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June 12, 2011

NJ Legal Defense Update: Summer is the Time for Underage Drinking, Driving and DWI Arrests

by Jonathan F. Marshall

With summer upon us and the school year all but over, youngsters from junior high and high schools all across the Garden State will be hitting the beaches, the malls and local meeting spots to kick off their summer vacation in a big way. Unfortunately, some of what young people do during their vacation is experiment with alcohol.

While many will argue that teenage drinking is part of the growing up, the state of New Jersey has strict rules against underage drinking, and even possession of alcoholic beverages by minors. As New Jersey drunken driving defense lawyers, I and my staff of experienced DWI attorneys know well the circumstances that can lead to a DWI arrest. Similarly, we also know how damaging an underage drinking or drunk driving conviction can be to an individual just starting out on his or her life’s journey.

Right of passage or not, New Jersey law does not recognize a minor’s right to drink, either in public or at home. Any adults who knowingly allow youngsters to engage in such activities is also opening themselves up to their own legal problems. It’s always advisable to follow the law and avoid a serious alcohol-related arrest and conviction down the road.

Many organizations around the state and throughout the nation believe that underage drinking represents an significant public health issue. Whether one agrees with this statement, it has been fairly well documented that alcohol — such as beer and wine — is the drug of choice among children and adolescents. This may not be too surprising due to the relative ease of access that kids have to household stock of alcoholic beverages.

Some parents and legal guardians believe that it is safer for young teens to drink at home, if they are going to drink anywhere, so those adults sometimes actively participate in a child’s drinking and hence breaking the law. In fact, under the state’s social host liability laws, any adult who chooses to supply beer, wine, hard liquor or another kind alcoholic beverage to a young person under 21 years of age can be held accountable if any of the underage individuals are killed or injured as a result. And then there are the potential liability suits.
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June 5, 2011

New Jersey State Trooper Faces Suspension for Multiple Drunken Driving Stops in Atlantic County

by Jonathan F. Marshall

As a New Jersey DWI defense attorney and former municipal prosecutor, I fully support the efforts of our law enforcement community in maintaining public safety. Everyday, uniformed men and women throughout the Garden State put themselves in harm’s way to help keep our cities, towns and villages pleasant and safe places to live and work. However, what I cannot abide is the apparent double standard that some police officers maintain when conducting their own affairs.

It is a sad commentary when a civil servant appointed by the people cannot live up to the same standards that they themselves are sworn to uphold. This applies not only to gross instances of criminality, but also to lesser infractions for which any other member of our society can be held accountable. As a drunken driving defense attorney, my focus is on helping those individuals who have been accused of driving while intoxicated, or otherwise impaired by alcohol, prescription medication (drug DUI), or even illicit drugs, such as marijuana.

Not long ago, a New Jersey State Police officer was recommended for suspension due to repeated drunken driving stops in the township of Hamilton. According to news reports, an administrative law judge recommended a 7-month suspension for Trooper Sheila McKaig in regard to the officer’s multiple drunken driving stops over a period of just three months back in 2008, and even earlier. Even though each of those traffic stops allegedly suggested suspected drinking on McKaig’s part, she was never subjected to blood-alcohol content (BAC) testing, nor was she charged with any violations.

May 6, 2011

Bergen County DWI Update: Could Drivers Someday be Arrested for Drowsy Driving Just Like DUIs Today?

by Jonathan F. Marshall

Today, it’s not uncommon for a fatigued driver to be stopped by a New Jersey State Police trooper for failure to maintain a lane, possibly caused by drinking and driving. But unlike a motorist who fails a field sobriety test and then blows over 0.08 on a breathalyzer test, a drowsy driver has a good chance of getting off with a warning.

Now, no one will argue that nodding off on the highway is a dangerous and potentially deadly situation for any driver, but does it rise to the level of drunken driving and drug DUI? Here in the Garden State it is already a criminal offense when drowsy driving leads to a fatal traffic accident. But in some circles, populated by various experts and law enforcement officials, the desire still exists to penalize drowsy drivers to the same extent as those motorists found guilty of driving while under the influence of alcohol or prescription medication (also known as drug DUI).

There are facts to bakc this up. in a study dating back to 1995, AAA Mid-Atlantic Inc. found that driving with no sleep for 24 hours was akin to having a blood-alcohol content (BAC) of 0.10 percent, more than the legal limit for DWI in New Jersey. Around that same time, the National Highway Traffic Safety Administration (NHTSA) estimated that drowsy driving was to blame for about 100,000 crashes, more than 70,000 injuries and nearly 1,600 fatalities annually across the U.S.

Consider the similarities, as many experts have. While driving home tired after working the graveyard shift, a driver might try to squeeze in a few extra miles instead of stopping at a rest area. Bleary-eyed and perhaps not on top of his or her game, it is possible for a motorist to appear drunk on the road. The same can be said of long distance driving with not enough shuteye time.

As New Jersey drunken driving defense attorneys, we have a great deal of experience representing individuals accused of operating a motor vehicle while intoxicated. But is working a double shift then driving home a little fatigued the same as getting behind the wheel of an automobile after having one too many shots at a bar? Legally, these two may begin to converge.

As stated above — just like DWI, prescription drug DUI, or impaired driving as a result of using a controlled dangerous substance (CDS) such as marijuana or cocaine — the consequences for killing another person while under the influence are quite severe.
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May 3, 2011

Monmouth County Drunk Driving News: Court Revisits Reliability Issues with Alcotest Breath Test Device

by Jonathan F. Marshall

Earlier this year the courts were faced with a potential problem affecting the reliability of the Alcotest device, which is used extensively throughout New Jersey to measure the blood-alcohol content (BAC) of suspects arrested for alleged drunken driving. As many people know, breathalyzer machines provide one of the main pieces of evidence that a motorist was operating his or her vehicle under the influence of alcohol.

Although not used in all drunk driving cases, the use of these breath test devices make up a significant percentage of DWI convictions in Bergen, Middlesex, Ocean and Morris County.

As New Jersey drunk driving defense lawyers, I and my colleagues possess an extensive understanding of the Alcotest machine, its maintenance and operation. Certainly to have these devices under close examination raises many questions about those DWI convictions on which possibly faulty BAC measurements were based, in whole or in part.

According to news articles, some facets of the Alcotest machine’s reliability were ordered to be re-examined by a Monmouth County court within two months from a state appeals court decision at the beginning of April. It was not unexpected that any ruling requiring further investigation into the quality of the device’s measurement capability would likely cause a delay in the prosecution of DWI-related cases where the defense presented a challenge to the proper calibration of these machines — specifically the quality of a temperature probe used to maintain proper operation of the Alcotest model 7110 MKIII-C.
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April 6, 2011

NJ Supreme Court Says No to Using Breathlyzer Refusal Convictions as Proof of Prior Drunken Driving

by Jonathan F. Marshall

A 2009 appellate decision that looked to be a potential problem for individuals convicted of breath test refusal in New Jersey was reversed by the NJ Supreme Court earlier this year. Depending on the circumstances, a motorist who is pulled over for a traffic infraction can end up being cited for driving under the influence of alcohol. But, as many people already know, being arrested for drunken driving can also include a charge of breath test refusal if the motorist declines to provide a breath sample.

If the arresting officer suspects that the driver is drunk due to beer, wine or hard liquor consumption, he may request that the suspect take a breathalyzer test, also known as an Alcotest. As New Jersey DWI defense lawyers, I and my colleagues are certified in the maintenance and operation of the Alcotest device, which allows us to better argue the limitations of this machine and errors that can occur durin its use.

Should a driver refuse to take a breath test, or blood test, used by police to measure blood-alcohol content (BAC), the officer in charge is within his right to charge that person with breath test refusal. This has been a common course of action when a driver has chosen not to be tested. Until recently, the courts have not been allowed to treat refusal convictions as full-blown DWI convictions when considering a repeat driving while intoxicated offense. However the appellate case reviewed by the NJ Supreme Court had threatened to change all that.

According to court records, in the case of STATE v. CIANCAGLINI, the New Jersey Supreme Court unanimously rejected the appellate court ruling that would have turned previous breath-test refusals into proof of prior drunken driving. Had the Supreme Court not rejected that earlier ruling, it could have meant that hundreds, and maybe thousands of motorists who had previously been convicted of refusing to take a breathalyzer test in New Jersey would have found they had what amounted to the equivalent of a prior drunken driving conviction on their record.
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April 3, 2011

Jersey Legal Defense Update: A Look at Kids and Underage Drunken Driving Charges

by Jonathan F. Marshall

It’s no secret that the state of New Jersey has heavy penalties for motorists convicted of driving drunk on public roads. What many people don’t know, however, is that state law also has penalties for teenagers and other minors who arecaught driving under the influence of alcohol, or even possession of beer, wine or hard liquor.

As a New Jersey DWI defense lawyer, I and my colleagues know how serious it can be for anyone under 21 years old who is convicted of intoxicated driving. By law, a person must 21 or older to consume, buy or even be in possession of an alcoholic beverage. This includes any drink containing alcohol. Basically, underage drinking is strictly illegal here in the Garden State.

Both the police and our court system have little tolerance for underage drinking and possession of alcohol, much less underage driving. This why the legal consequences are fairly severe when it comes to operating a motor vehicle while intoxicated.

Even if a young person is not arrested for DWI, just being convicted of drinking alcohol as a minor can have an impact on that individual’s future driving privileges when he or she is eligible to begin operating a motor vehicle. As drunk driving defense attorneys for Monmouth, Ocean, Bergen and most other counties around the state, we understand the downside that underage DWI, consumption or possession of alcohol can have later in life.

Here in New Jersey, if a person under 21 years old is arrested for buying or drinking a can of beer or liquor of any kind in a business that is licensed to sell alcohol, that underage individual could receive a fine of $500, not to mention lose his of her driver’s license in the process — for up to six months. Parents of minors who are not yet driving need to think about this for a moment; even though a minor is not yet a licensed driver, any potential license suspension will begin as soon as that child is eligible to receive his driver’s license.
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April 1, 2011

New Jersey News: Legislators Fume over Smartphone Apps Identifying Drunken Driving Checkpoints, Sobriety Roadblocks

by Jonathan F. Marshall

Forget word of mouth, iPhones and Blackberrys are bringing more and more information to everyone’s fingertips. In the office, at home and in the car, smartphones do more than dial your lawyer after a drunk driving arrest. In fact, these devices have raised the rancor of some lawmakers around the country due to a peculiar type of app that millions of people seem to be taking advantage of.

As New Jersey DWI attorneys, we know that the state is legally bound to publish the times and locations of pending sobriety roadblocks, also known as drunk driving checkpoints. Even so, the Apple iPhone and other smart devices support programs that will also tell a driver when and where they might be stopped and ticketed for driving under the influence. But these methods are being criticized.

According to recent news reports, several U.S. senators have requested companies such as Google, Research in Motion and Apple to deep-six applications that help motorists avoid DWI-DUI checkpoints as well as speed traps. These applications — or apps, as they are better known — go by names like Trapster, iRadar and PhantomAlert. In fact, there are even other apps that reportedly tell drivers where red light cameras are situated and whether or not a driver is heading into a school zone.