DWI Law and Legislation

March 28, 2011

Bergen County Drunken Driving Defense Update: Tips on Fighting a DWI Arrest in New Jersey — Part 1

Don’t believe for one second that being “arrested” for drunk driving in Bergen, Monmouth, Ocean or any other county in the Garden State will automatically lead to a conviction for driving under the influence of alcohol. The fact is a lot can happen between a DWI-related traffic stop and any sentencing for an intoxicated driving summons.

As experienced New Jersey drunk driving defense attorneys, I and my colleagues know that the situation is not always that dire. Over and over, our staff is asked by potential clients about the true practicality of fighting an intoxicated driving charge. A typical response? Pleading guilty to a drunken driving charge is certainly not the way to win.

Municipal prosecutors in charge of DWI cases will typically point to a number of factors in an effort to “prove” in court that an individual was operating a motor vehicle in an impaired state. These include: 1) the odor of alcohol on the driver’s breath; 2) police observations that the subject was driving in an “erratic” manner; 3) the suspect “appeared” disheveled or carried himself as if he was intoxicated by liquor; 4) demonstrated poor performance of the standard field sobriety tests; and finally, 5) was deemed legally intoxicated based on the blood-alcohol content (BAC) results from a breath or blood test.

March 20, 2011

NJ Drunken Driving Update: Understanding the DWI Arrest Process in New Jersey (Part 2)

by Jonathan F. Marshall

Knowing how police departments and the judicial system handle drunken drivers is one large step in preparing for a future DWI arrest. This is not to say that learning about the steps of a drunken driving arrest and possible conviction indicates a person’s propensity to drive under the influence of alcohol. While no one expects or even welcomes being charged with DWI or drug DUI, most people are fairly unprepared when it does happen to them.

As a New Jersey DWI defense attorney and a former municipal prosecutor, I understand the law and its inner workings. Below we have included some additional information that go along with a previous blog entry. Our intent here is to perhaps help some drivers to be more prepared if and when they are stopped by a state trooper or local police officer and charged with DWI or even a drug-related DWI offense, such as marijuana possession in a vehicle.

Following a traffic stop, or at a sobriety checkpoint, if a police officer suspects a driver may be operating a motor vehicle while impaired by alcohol or prescription medication, he may use several methods to determine if that person is inebriated. One way for an office to decide if a suspect should be taken to police headquarters for a breath test is the use of one of several standardized field sobriety tests.

As one of the many tools of law enforcement, field sobriety tests can be used as evidence to prove that a driver was under the influence at the time of the arrest. They typically involve three separate tests:

1) The one leg stand test 2) The horizontal gaze nystagmus 3) The walk-and-turn test
The second of these three may be familiar to most people who have watched movies or TV shows where an officer asks the subject to follow a light or a finger with his or her eyes from one side to the other.

While administering these tests, an officer will likely be observing the suspect’s actions and making note of almost every thing the person says of does, all of which will likely be used in court as evidence to gain a drunken driving or drug DUI conviction. A patrolman may even watch how driver exits her vehicle and record that for use in court by the prosecuting attorney.
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March 13, 2011

Judge in Atlantic County, NJ, Rules Drunken Driving Breath Test Machine Unreliable

by Jonathan F. Marshall

An Atlantic City judge recently overturned a DWI conviction when he found that only a certain type of thermometer probe should be used to determine the reliability breathalyzer devices. According to recent news reports, Superior Court Judge Max Baker’s decision could affect the results of numerous drunk driving cases in the Atlantic County area. Apparently, the New Jersey State Police, whose job it is to regulate the Alcotest breath test device, did not immediately say how many police departments in the county use the reportedly unreliable component.

As a New Jersey drunken driving defense lawyer, I and my colleagues are well versed in the law pertaining to drunk driving as well as drug DUI arrests. Each of our attorneys is also qualified in the operation and maintenance of the Alcotest machine cited in this news report.

Superior Court judge’s ruling could negate DWI arrests throughout the county, according to other area defense attorneys and municipal prosecutors. According to court records, the ruling come from an appeal by Emilio Rivera who was pulled over on New Year’s Eve, 2009, along the Garden State Parkway.

Rivera was arrested for drunk driving and taken into custody. Police eventually administered the Alcotest at the Bass River Barracks. The man’s case was initially heard in Galloway Township, were he was convicted on evidence presented by the prosecutor’s office. However, his attorney appealed on a number of issues, including the manufacturer of the temperature probe and the room where the defendant was tested for blood-alcohol content (BAC).

A key to the man’s appeal was the fact that in the New Jersey Supreme Court’s previous ruling stating that the Alcotest device could replace the Breathlyzer throughout the state, it named only one company as the approved manufacturer for the thermometer probe. Specifically, the Ertco-Hart digital measuring system is the one specified, however it has come to light that some police departments use a probe made by the Control Company.

Apparently, testimony from another case concerning the two probes showed that Control was the choice of probe mainly because it is cheaper — about $300 compared to $2,000 for the Ertco-Hart model, which also requires yearly recalibrations that can cost upward of $700. According to the news report, Control’s probe is replaced rather than recalibrated.
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March 9, 2011

NJ Drug DUI Defense Update: Understanding the Difference between Drug DUI and DWI Charges

by Jonathan F. Marshall

I’ve said it here before, and most people understand that DWI arrests can occur almost anywhere, and almost any time. No matter where you live in the Garden State, be it Morris, Hudson, Mercer or Atlantic County, state police troopers and other local law enforcement officers have but little tolerance when it comes to drunken driving on the part of area residents, not to mention out-of-state drivers.

This lack of tolerance covers a range of offenses such as alcohol-related DWI and drug-related DUI, the latter of which includes prescription drugs and marijuana, not to mention seriously illegal drugs like cocaine and heroine. This last group comes under the heading of controlled dangerous substances, better known as CDS.

Being a New Jersey DWI defense lawyer, I offer a vast amount of experience in the defense of motorists accused of operating a motor vehicle while intoxicated by beer, wine or other alcoholic beverages or impaired due to the affects of CDS-type drugs. It commonly accepted that police routinely will charge a driver with drunken driving when he or she is suspected of driving under the influence of drugs (DUID). These drugs can include but are not limited to narcotic, hallucinogenic and/or habit-forming substances.

To understand the process of charging a driver with drug DUI, it is also important to know that New Jersey law prohibits operating a motor vehicle by a person who is impaired by marijuana, cocaine, or other narcotics. This group also includes prescription medication such as morphine. For legal purposes, the standard of proof used to establish a narcotic-based DWI charge was established about five years ago in State v. Bealor. Moreover, State v. DiCarlo defines the term “narcotic” for the specific purpose of establishing a basis for driving while intoxicated charges here in the Garden State.
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February 28, 2011

New Jersey Marijuana Defense: Did Police Find Weed in Your Car? Better Contact an Experienced Attorney

by Jonathan F. Marshall

With more and more states voting to allow medical marijuana sales in cities and towns across the country, the opportunity for DWI and drug DUI arrests involving the possession of weed (or cannabis) has become much more real. Because of the increasing use of hash as a medicinal drug, the lines are getting blurred between what is and what isn’t legal. Pot, as many will point out, is still illegal without a doctor’s prescription in states that allow it, but even in those that do, local laws may leave legitimate users feeling vulnerable.

It’s no secret that regardless of whether or not a state has passed medicinal marijuana laws, law enforcement agencies will still be pulling motorists over who may possibly be impaired due to driving while under the influence of a controlled dangerous substance (CDS) such as marijuana or cocaine.

Regardless of whether a driver is impaired due to smoking pot (drug DUI), or because of alcohol consumption (DWI), or just falling asleep behind the wheel, a police officer will still be looking for those telltale signs of possibly erratic driving. Using a simple traffic or defective equipment offense as a justification for the traffic stop, a patrolman may then notice that the driver is exhibiting impaired behaviors.

Marijuana is one of the more common drugs in use around the Garden State and as such arrests for marijuana possession in a motor vehicle are relatively common occurrences. Possession in a vehicle is a chargeable offense that usually requires the services of a qualified New Jersey drunk driving or DUI defense lawyer.

The questions that anyone charged with marijuana possession in a vehicle should ask themselves include the following:

Did the patrolman have probable cause prior to stopping me?
Did the officer conduct a proper search of my car (or my person)?
Can a municipal prosecutor actually prove possession or control of the marijuana discovered by the police?
Did the police maintain a proper “chain of custody” and testing of the alleged marijuana?

February 13, 2011

NJ Drunk Driving News: Stiffer DWI Penalties May Not Discourage Motorists Who Drive While Intoxicated

by Jonathan F. Marshall

While some may say that we are still in the dark ages of combating drunken driving on New Jersey’s roadways, others argue that DWIs and drug DUIs have been reduced to acceptable levels. Few will agree exactly on the course to take from this point on, but as a New Jersey drunk driving defense lawyer, I’d say it’s a fair assumption that many of the motorists arrested for driving under the influence of alcohol or prescription medication would never have considered themselves impaired.

Of course, that doesn’t mean that some drivers have broken the law knowingly, but these days quite a few individuals find themselves on the receiving end of a drunken driving summons or even arrested for operating a motor vehicle while intoxicated. Whether one is expecting to be charged with DWI or not, there are very stiff penalties for driving drunk in the Garden State.

Recently, critics are claiming that after years of increasing fines and penalties, as well as public awareness campaigns, sobriety roadblocks and saturation patrols, there appears to have been little decrease in the overall number of DWI and DUI arrests on New Jersey’s roadways.

In 2009, there were reportedly 27,838 drunken-driving arrests in this state, fewer than any year in the entire decade now past. According to statistics from the New Jersey State Police, that figure represents a three-percent decline from the previous year. Based on information from various government authorities, the number of drunken driving arrests has held pretty much at the same level for nearly 10 years. The peak, according to news reports, occurred in 2007 when arrests nearly hit 30,500.

Federal grant monies are constantly being funneled to state and local police departments across New Jersey totaling millions of tax dollars to put more police officers on the street over the holidays. Although the idea is to crack down on drunk drivers, some say these DWI campaigns only scare off responsible adults and hurt local businesses such as restaurants and other establishments that serve alcohol.
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February 11, 2011

NJ Drunk Driving Update: Multiple Drunk Driving Convictions? Consult with an Experienced DWI Defense Attorney

by Jonathan F. Marshall

The old adage, “Where there’s one, there’s two,” can apply to many aspects of life. For motorists convicted of a first DWI offense, there is unfortunately the distinct possibility of being stopped at a future date and accused of driving under the influence of alcohol. For those individuals facing the possibility of multiple drunken driving convictions, you should definitely consider enlisting the services of a qualified DWI defense lawyer.

Whether an individual has been charged with a DWI or DUI in Essex, Atlantic, Bergen or Monmouth County, the consequences of multiple convictions remain the same and can be extremely detrimental to a person’s future. Careers have been forfeited, relationships have been destroyed and friendships lost over something as seemingly inconsequential as driving with a slight buzz.

But the penalties and consequences of a second or third DWI conviction are anything but trivial. My suggestion to anyone facing this kind of scenario is don’t make a bad situation any worse; take the necessary steps now to defend yourself in a court of law — consult with an experienced DWI defense attorney.

February 6, 2011

New Jersey Drunk Driving Arrests Follow Multiple Steps before a Final, Possible DWI Conviction

by Jonathan F. Marshall

It doesn’t matter where you live in the Garden State — Atlantic, Bergen, Monmouth, Passaic or even Ocean County — as a motorist there is always that possibility that you will be pulled over by the New Jersey State Police or a local patrolman for one of dozens of relatively minor traffic offenses. But an interesting fact is that nearly every DWI arrest begins with a routine traffic stop.

As a drunken driving defense lawyer, I and my colleagues have defended literally hundreds of individuals charged with driving under the influence of alcohol, prescription meds or even illicit drugs such as marijuana or cocaine. Being stopped for something as seemingly minor as a burned-out taillight can actually result in some motorists receiving a summons for drinking and driving.

Some people may not realize that for an arrest for drunken driving to be legal it must have been preceded by what state law defines as “reasonable suspicion.” In this case, the suspicion would be that the driver of vehicle has committed a traffic violation.

This requirement is based on a case known as New Jersey v. Carpentieri, in which the New Jersey Supreme Court ruled that a police officer needs to have an “articulable and reasonable suspicion” that the driver of a vehicle has committed a violation of New Jersey traffic law before that officer can even consider pulling the suspect’s car or truck over.

Following the initial stop for the traffic offense, the patrolman must by law have probable cause prior to making any arrest and before having the driver submit to breathalyzer test. By probable cause the law states that the officer must have cause to believe that the motorist is operating his car or truck while under the influence of alcohol or other substance that may have caused impairment.

Please keep in mind that at no time during this early stage of a DWI arrest does a driver have the right to advice from counsel. Even an experienced DWI lawyer will be of absolutely no help at that particular point in time.
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February 2, 2011

New Jersey Youths Charged with Underage Drinking Face Potential Problems Down the Road as Adults

by Jonathan F. Marshall

As a New Jersey DWI defense attorney, I and my staff of experienced legal professionals have represented numerous minors charged with underage drinking and DWI. With offices in Ocean County, Bergen County, Passaic and Middlesex Counties, we possess extensive knowledge of state and local drunk driving and DUI laws and prosecutorial strategies.

As experienced DWI lawyers, we also understand that a conviction for underage drinking or driving while intoxicated can seriously impact a young person’s future. Although youngsters may not believe that a seemingly minor event could in anyway have a bearing on their future life or business career, there always exists the potential for unintended consequences down the road.

For a young adult just setting out on his journey toward adulthood, being arrested for underage drinking can have a considerable impact on his life. And the facts speak for themselves.

January 31, 2011

Alcoholic Beverage Trade Association Calls New Jersey DWI Checkpoints Ineffective at Catching Drunk Drivers

by Jonathan F. Marshall

Recent comments by a beverage trade group calls for an end to drunken driving checkpoint and DUI roadblocks here in the Garden State and elsewhere across the nation. As a New Jersey drunk driving defense attorney, I understand the legal requirements that must be met for a DWI checkpoint to be operated within the laws of this state, as well as the law of the land, the United States Constitution.

And while most drunk driving roadblocks meet the legal requirements of New Jersey, there are many people out there who feel that whether or not these checkpoints are legal they may not be very effective at catching motorists who driver their vehicles while under the influence of alcohol, prescription medication or even illegal drugs such as cocaine and marijuana, also known as weed or cannabis.

One group that is questioning the efficacy of drunken driving roadblocks is the American Beverage Institute (ABI), which recently called for an end to this kind of police enforcement practice. The ABI’s comments, according to reports, include accusations that DWI-DUI checkpoints harass responsible drinkers.

The ABI has called checkpoints ineffective because they result in, on average according to the group, only about three drunken driving arrests out of every 1,000 motorists stopped. Based on this, the ABI has urged state and local law enforcement officials to only use so-called roving patrols. Using such tactics, according to news articles, the police would patrol city and rural streets looking for vehicles that are being driven in an erratic manner.

While police officials throughout New Jersey agree that roving patrols are a useful tool, they insist that sobriety roadblocks are valuable as well. This, police say, is true even if groups like the ABI say that most drivers who are pulled over at these checkpoints are never charged with driving under the influence of alcohol.
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