DWI Law and Legislation

May 16, 2010

Seton Hall Report Questions Accuracy of New Jersey Alcotest Breath-testing Machine Regarding DWI Cases

Once again, the validity of breath-test measurements coming out of New Jersey’s Alcotest devices is being questioned, this time by Seton Hall University’s school of law. Titled “The Untestable Drunk Driving Test,” the report shines a spotlight on the reputed accuracy and reliability one of the most damning pieces of evidence used by the state in DWI cases against motorists accused of driving under the influence of alcohol.

Working with other DWI defense lawyers at my firm, we have a great deal of experience in this area. In fact, as a former municipal prosecutor I myself relied on the results for the blood-alcohol content (BAC) testing that law enforcement officers perform everyday on accused drunken driving offenders.

According to this latest report out of Seton Hall in South Orange, NJ, Alcotest maker Draeger AG & Company lobbied to have the machine’s source code classified as a trade secret. Because of this, there has apparently been no easy way to confirm the accuracy of the device. What this means, essentially, is that the state of New Jersey purchased a “black box” device that state police and other law enforcement agencies use regularly to arrest and charge drivers with drunk driving.

Because no independent group is allowed to buy and test the Alcotest device — apparently a Seton Hall University professor attempted to buy one from Drager, but was denied — scientific comparisons are next to impossible. Based on recent news reports, 20 people convicted of DWI have sued the state over the results of the Alcotest device. As a result, Drager agreed to allow outside companies to review the source code, but not the machine itself.

Reportedly, Draeger contracted Colorado-based SysTest Labs to review the device’s source code, while the plaintiffs used a New York-based company to analyze the code. The Seton Hall report claims that both companies determined the code was flawed, however, these third parties each reached different conclusions regarding the reliability of the machine.

SysTest said that despite the flaws the Alcotest machine would “reliably produce consistent test results.” This in itself is not a glowing endorsement, but the plaintiffs’ research firm, Base One, went one further by saying it found 24 “major defects,” nine of which would have a significant impact on the device’s testing results.
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May 12, 2010

NJ DWI News: Will New Law Increase Police Focus on Young Drivers, Drunk or Otherwise?

by Jonathan F. Marshall

A recently passed law requires drivers under the age of 21 to place a red sticker on their vehicle’s license plates. While the intent of the law appears to be a good-hearted attempt at traffic safety, as a New Jersey DWI defense attorney I tend to side with those claiming the $4 sticker will only invite unwarranted scrutiny and potential discrimination against a segment of the driving public.

When it comes to drunk driving enforcement, New Jersey State Police and municipal police officers are always on the lookout for motorists who may be operating their vehicles while impaired due to alcohol, prescription drugs or controlled dangerous substances (CDS). Young drivers who exhibit traffic behavior suggesting inebriation could quite possibly by singled out due to that red mark on their license plate.

According to an editorial, the new law that took effect on May 1 will must likely lead to discrimination against young drivers which probably wouldn’t happen without a red dot. According to the author, New Jersey is one of the top ten safest states for teenage drivers. Referring to the 2001 law that established a curfew for teenagers and significantly decreased the teen driver accident rates, the editorial asks if there is any good reason to put another law into effect.

May 11, 2010

Drinking and Driving by Minors in New Jersey: Heavy Consequences Apply to Underage DWI Convictions

by Jonathan F. Marshall

Here in New Jersey, state and local law enforcement agencies take underage drinking very seriously. As a minor or parent of an underage child, you should know that New Jersey law is very specific when it comes to underage drinking and driving. Since a person must be 21 years or older to puchase, be in possession of or consume an alcoholic beverage, underage drinking is — by definition — against the law.

The consequences of underage drinking are rather severe under state law, especially as when as it applies to operating a motor vehicle while under the influence of alcohol. But regardless of whether you are stopped for DWI while operating a vehicle, simply being convicted of underage drinking could very probably affect your driving privileges into the future.

Case in point, say an individual under 21 is arrested for purchasing and/or consuming a beer or wine cooler at a licensed establishment,that person could be fined $500, not to mention lose his or her driver’s license for a maximum of 6 months. Parents please make a note here: Even if your youngster doesn’t have his or her driver’s license yet, the potential driver’s license suspension will begin as soon as he or she becomes eligible to receive their license. Furthermore, any youngster who violates New Jersey’s underage drinking laws may also be required to attend an alcohol treatment or education program.

May 6, 2010

New Jersey DWI Defense Update: What Every Driver Should Know If Stopped for Drunk Driving — Part Two

by Jonathan F. Marshall

Understanding how the police and court system approaches drunk driving offenders is the first step in preparing yourself for a possible DWI arrest in the future. Of course, no one wants to be charged with driving while intoxicated and most people are usually unprepared when it does happen. But being taken into custody for driving under the influence is the beginning of a protracted extended process.

As a New Jersey drunk driving defense lawyer and former municipal prosecutor, I believe knowledge is power. Below are some additional pieces of information that go along with a previous entry elsewhere in this blog. My hope is this may help some drivers when if and when they are pulled over for DWI, drug DUI or marijuana possession in a vehicle.

When it comes to drunk driving, a police officer may suspect that you have been operating your car or truck while impaired. One way for the patrolman to make a decision on whether to take you to police headquarters for a breath test is the use of several standardized field sobriety tests.

Field sobriety tests are one of the main tools of law enforcement and can be used as one of many pieces of evidence to prove that you were, in fact, under the influence of alcohol or prescription drugs at the time of the arrest. These tests typically involve three separate tests:

1) The walk-and-turn test 2) The one leg stand test 3) The horizontal gaze nystagmus
This last one is something many people have seen in the movies and on TV where the patrolman asks the subject to follow a light or a finger with his eyes from one side to the other.

In addition to these tests, the officer will be watching and noting nearly every thing you say or do during the traffic stop, all of which may be used in court as evidence to gain a DWI or drug DUI conviction. Even how you get out of your car can be noted and used against you by the prosecutor’s office.
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May 2, 2010

New Jersey DWI Update: Court Holds that DWI Testing Rules Don’t Apply to Current Cases

by Jonathan F. Marshall

Not long ago a New Jersey appellate court made its decision in the case of STATE v. HANNA, No. A-5256-08T4 (N.J.A.D. 2010). In this appeals case, the appellant, Douglas Hanna, argued that his drunk driving conviction was not valid because certain procedures that are now required for the collection of evidence through chemical-based blood-alcohol content (BAC) measurement testing were not in place when he was arrested and charged with driving while intoxicated.

As a New Jersey DWI defense attorney, I know there are many instances where an appeal can make sense following an unfavorable judgment in a drunk driving, drug DUI or breath test refusal case. In fact, I and my colleagues are experienced in this area and work aggressively to defend motorists who are caught on charges of driving under the influence of alcohol or prescription drugs.

In the case of Mr. Hanna, he was picked up for drunk driving on November 21 of 2007. Following his arrest, he was transported to the hospital due to complaints of chest pain. After being released from the facility, approximately two hours later, the police officer in charge detected the odor of alcohol on Hanna’s breath. The man did consent to a breath alcohol test conducted on an Alcotest device, which returned a BAC of 0.18 percent. According to court records, the device had last been calibrated seven months prior.

April 28, 2010

NJ DWI-Drug DUI Defense News: Court Throws Out Cocaine Evidence due to Illegal Search

by Jonathan F. Marshall

As a New Jersey DWI defense attorney, my job is to provide motorists accused of drunk driving or drug DUI an aggressive defense against the charges. Taking into account that the state’s case usually hangs on the strength of the evidence presented at trial, this evidence must not be tainted in any way for the prosecution to have a chance of conviction in instances of driving under the influence of alcohol or prescription drugs.

As a former municipal prosecutor myself, I know first-hand how important it is that police follow proper procedures when collecting evidence against an individual. If not done correctly, as a drunk driving defense lawyer, I know that opportunities exist to have the such evidence ruled as inadmissible by the court. A recent decision by the Superior Court of New Jersey, Appellate Division (STATE v. MANSOORY) overturned an earlier conviction based on the manner in which drug evidence was collected from a defendant’s vehicle at the time of the arrest.

Leading up to the original case against Darius S. Masoory, which was tried in Cape May County, the defendant was arrested on charges of possession of cocaine after a search of the defendant’s impounded vehicle, following his arrest on suspicion of drunk driving at a ferry terminal operated by the Delaware River Bay Authority (DRBA).

April 26, 2010

NJ Drunk Driving Defense Update: New Jersey Appellate Court Upholds DWI Conviction per Chun

by Jonathan F. Marshall

When fighting a drunken driving charge, a New Jersey DWI defense lawyer will use all of his experience to help his client get a fair trial. Since being arrested and charged with driving under the influence of alcohol is a serious offense with long-lasting and potentially detrimental effects on a person’s life and livelihood, a drunk driving attorney will use the law in an effort to achieve the most favorable outcome.

The court will usually consider the defense’s arguments and weigh those against that of the prosecution. A recent New Jersey appellate court decision (STATE V. UZUPIS) upheld one man’s appeal of a drunk driving conviction. The circumstances of the arrest appeared to be questionable, which is why the defense files an appeal.

According to the original case tried in an Atlantic County court, Luke J. Uzupis had been arrested after police found him sleeping in his running vehicle. At that time, a police officer spotted the man’s car parked at a closed gas station around midnight. The headlights were reportedly will on and the engine was running.

April 2, 2010

New Jersey Drunk Driving News: Will Anti-DWI Breathalyzer-Ignition Interlocks Cause Traffic Accidents?

by Jonathan F. Marshall

Since the passing of another anti-drunk driving bill in the state legislature earlier this year, some people have voiced concern over the safety of ignition interlock devices, which are designed to disable a vehicle if the operator’s blood-alcohol content (BAC) is over a certain level. The law requires even those convicted of a first-time DWI violation to have the breathalyzer-type device installed on their vehicle.

As a New Jersey lawyer who defends motorists charged with driving under the influence of alcohol, I was not surprised by the passage of this law especially considering the strong public support for most any DWI, drug DUI or other drunken driving offenses. Not only does a conviction for driving while intoxicated carry a stigma that is not easily lost, court costs, fines and increased insurance premiums only add to the burden, even for first-time offenders.

Recently, an editorial addressed the concern of having so many vehicles fitted with a breathalyzer-ignition interlock device. The fear is that these devices might cause additional distractions or literally shut off the vehicle as it is traveling on a busy expressway, possibly causing an accident.

March 26, 2010

DWI Defense Law Update: NJ Appellate Court Overturns Decision on Sentencing for Convicted Drunk Drivers

by Jonathan F. Marshall

Recently there was an important change to New Jersey drunk driving law affecting the sentencing of motorists convicted of DWI offenses. According to reports, a New Jersey appellate court overturned a decision that had stood as a precedent for the past 17 years. As a New Jersey drunk driving defense lawyer, my aim is to help those accused of driving under the influence of alcohol or prescription drugs get a fair hearing. Changes such as this latest decision will have a great affect on DWI case going forward.

The recent appellate court ruling states that any previous convictions for the violation of New Jersey’s implied consent law must now be considered as prior DWI convictions where drunk driving sentencing is concerned.

The case in question, State v. Ciancaglini, No. A-2785-08T4 (N.J.A.D. 2010), was brought by the state of New Jersey as an appeal to the sentencing of Eileen Ciancaglini, a woman charged with drunk driving back in May 2008 (at that time Ciancaglini blew a 0.17 percent BAC on a breathalyzer).

Ciancaglini had already been convicted of drunk driving in 1979; she was also convicted of refusing a chemical alcohol test in 2006. When she pled guilty to the 2008 DWI charge she was sentenced as a third-time offender by the municipal court (Here in New Jersey, drunk driving defendants have the right to appeal the decisions of municipal courts to New Jersey Superior Court, which is exactly what Ciancaglini did).

In that appeal, the Superior Court used a precedent established in State v. DiSomma, 262 N.J.Super. 375 (N.J.A.D. 1993). In the case, the court found that prior refusal convictions did not count as prior DWI convictions under New Jersey’s DWI sentencing statute, N.J.S.A. 39:4-50. (This law also requires the court that sentences the defendant to discount a conviction so long as it occurred more than 10 years prior to the current conviction.)
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March 24, 2010

NJ Drunk Driving Defense: Valid Breath Tests Require a Minimum 20-Minute Observation Period

by Jonathan F. Marshall

As a New Jersey drunk driving defense attorney, I and my fellow lawyers must know all the details of DWI law and the processes that law enforcement agencies use to determine legal intoxication due to alcohol consumption. Part of this knowledge is how a breath testing machine, such as the Alcotest device, is used and procedures required by law that make any reading valid and useful in a court of law.

In New Jersey, the law states that for a breathalyzer machine to yield readings that can be used with confidence, the operator must ensure that at least 20 minutes have elapsed since the drunk driving suspect’s last ingestion of alcohol before administering the test. The reason for this is to avoid any possible presence of what is termed “mouth alcohol.” If this observation period is not followed, there is a chance that the machine can give a falsely high reading, as per State v. Downie, 117 N.J. 450, 455 (1990).

Although the term “ingestion,” is used here, the main purpose of the 20-minute time interval is so the breathalyzer operator can be assured that there is no alcohol present in the suspect’s mouth at the time of testing. As stated previously, any residual alcohol in the person’s mouth could cause an inaccurate measure of breath alcohol, which would invalidate the reading and call into question the procedures used by police.