New Jersey Drunk Driving Attorney Examines Proposed Law Making Ignition Interlock Devices Mandatory for All DWI Convictions

DWI Convictions

A new bill introduced before the state legislature last year by State Senator Nicholas Scutari may drastically change the way drivers convicted of DUI in the state are convicted.  The proposed changes to the State’s Driving While Intoxicated law, N.J.S.A. 39:4-50, seek to lessen some penalties for first time drunk drivers while making others more universal –  such as making Ignition Interlock Devices mandatory for all drivers convicted of DUI/DWI, even first time offenders.

Similar to the other proposed Senate Bill 404, discussed here earlier this year, it is important to recognize that there is no guarantee that this proposed bill will ever pass.  Also like that bill, the goal of Senator Scutari’s introduced legislation is to provide an alternative to drivers convicted of driving under the influence of alcohol, showing some added leniency to such drivers while simultaneously making the roads safer.

Which Parts of N.J.S.A. 39:4-50 Might Be Affected?

In New Jersey, the legal Blood Alcohol Content (BAC) limit for drunk driving in the state is .08%.  Under current law, someone convicted of DWI for the first time can have their license suspended for either 3 months (if his or her blood alcohol content is between .08% and .099%) or 7 to 12 months (if his or her blood alcohol content is .10% or greater). A judge has a lot of flexibility in deciding how long to suspend a driver’s license in those circumstances.

At the same time, a first time offender who is convicted with a blood alcohol content of .15% or greater must have an ignition interlock device installed on his or her vehicle during the period of license suspension until between 6 months to 1 year following license restoration.  An ignition interlock device is a device put on a car that requires a driver to provide a clean, alcohol breath sample before he or she can start the car.

How Will These Parts of the Law Change If the Proposed Bill is Passed?

Under Senator Scutari’s introduced legislation, a first time drunk driver who is convicted of driving with a BAC of between .08% and .099% will only have his or her license suspended for 30 days – a significant reduction from 3 months.  Similarly, a driver who is convicted of driving with a BAC of between .10% up to just less than .15% will have his or her license suspended for 45 days, while a driver who is convicted of driving with a BAC of .15% or higher will have his or her license suspended for 90 days.

At the same time, the proposed legislation hopes to make installation of an ignition interlock device mandatory for ALL drivers convicted under the DWI law.  The device must remain on the driver’s vehicle for the period of license suspension as well as an additional period of time between 3 months and 18 months after the driver gets his or her driving privileges reinstated.

What These Changes Would Mean if You Are Convicted

Losing one’s driving privileges is often the most severe penalty that first time drunk drivers face, because the penalty often means that a driver also loses his or her ability to go to work or otherwise provide for his or her family.  Reducing the period of license suspension for first time offenders recognizes this reality and tries to address the way the law punishes more than just the drunk driver.

At the same time, recent reports have estimated that ignition interlock devices have prevented more than 39,000 instances of drunk driving in New Jersey since 2010.  Therefore, requiring drivers to install an ignition interlock device attempts to make the roads safer for everyone.  The proposed law would not prevent a driver from being able to use his or her vehicle – for instance, to drive to work or buy groceries if necessary – but it would guarantee that the car could only be operated after a clean, alcohol-free breath sample is provided. 

The largest downside to the proposed law is that New Jersey requires the driver to pay for his or her own ignition interlock device, including the installation.  In addition to the nearly $1000 in fines that first time drunk drivers must already pay, an ignition interlock device could cost $70-150 to install and about $60-80 per month for additional monitoring and calibration.

Regardless of whether or not this bill becomes law, a person charged with driving under the influence of alcohol or drugs should always contact an experienced drunk driving attorney, who will be able to provide the best advice or possibly defend the case and get the charges dismissed completely.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Is Looking Out for You

A charge for driving under the influence of alcohol can carry extremely serious penalties that affect you as well as your family and loved ones.  At the same time, new laws, rules, and regulations take effect all the time. For that reason, it is important to consult a drunk driving lawyer knows what to look for in your specific situation.  If you or someone you know is charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI/DUI attorney will know the best way to help and can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

New Jersey DUI Attorney Discusses Plea Bargaining in Drunk Driving Cases

Bargaining in Drunk Driving Cases

Generally speaking, the law in New Jersey does not permit a defendant in a drunk driving case to plea bargain or enter into a plea arrangement with the police, the prosecutor, the court, or any other person on behalf of the state when it comes to charges for driving under the influence of drugs or alcohol. Therefore, if you are charged with DUI/DWI, and you were hoping to be able to plead guilty in order to have the charges changed or the penalties reduced, you may be out of luck. As with anything, however, that may not be the whole story.

While the New Jersey Supreme Court has long recognized the value of plea bargaining in order to make the administration of justice more effective, specific restrictions on plea bargaining were placed on defendants charged with violating N.J.S.A. 39:4-50, the state’s DWI/DUI law. Since State v. Hessen, the Courts ruled to take away a prosecutor or judge’s power to dismiss or downgrade drunk driving cases. For that reason, it is extremely important to consult an experienced drunk driving attorney if you or someone you know has been charged with driving under the influence of alcohol or drugs. An attorney will be able to explain your situation, help you prepare the best defense in your case, and may be able to have the charges against you dismissed completely. Moreover, there are still some ways that an attorney may be able to work around the plea bargaining restrictions and help improve the circumstances of your case.

An Attorney Can Still Help Have Your Case Dismissed

First, it is important to remember that the ban on plea bargaining in DUI/DWI cases does not mean that a court or prosecutor cannot decide to dismiss the charges against you completely. Municipal prosecutors have a legal and ethical obligation to ensure that justice is done in individual cases. This means that they should not prosecute a drunk driving case where the evidence cannot support the charges. Thus, an application by a municipal prosecutor to dismiss a drunk driving case or seek its downgrade to a different offense based upon evidentiary or proof problems does not constitute a plea arrangement under the rules.

For instance, as we have previously discussed in this blog, an experienced DUI/DWI lawyer may be able to have certain evidence excluded in your case – such as due to a problem in the way breathalyzer or blood alcohol content evidence was collected. This could result in the prosecutor deciding to downgrade or dismiss the charges for evidentiary reasons without plea bargaining.

Other Exceptions to the Plea Bargaining Ban

The rules forbidding plea bargaining cases also only apply to N.J.S.A. 39:4-50 charges. Therefore, an attorney can still help you have related charges merged or amended if you are being charged for driving under the influence of alcohol or drugs at the same time. The rules permit the dismissal of traffic tickets, ordinance violations, and disorderly persons offenses that are companion to a drunk driving ticket. These charges are considered to be companion if they come out of the same set of facts and circumstances that led to the DUI/DWI incident.

While entering in this kind of plea bargain will not eliminate the penalties associated with a conviction for drunk driving, a defendant who pleads guilty to a drunk driving offense in exchange for the dismissal of companion offenses may often avoid many thousands of dollars in fines, mandatory jail terms, additional loss of license, and or significant consequences.

Finally, there are a number of other complicated situations wherein a defendant may be permitted to enter into a plea arrangement with the court. This includes when a defendant is charged with DUI and refusal to submit to a breathalyzer test, or when a defendant is charged with DWI while in a school zone. If you or someone you know is arrested for driving under the influence of drugs or alcohol, it is important that you contact an experienced lawyer immediately, so that you can understand and take advantage of certain laws that can lessen the penalties you must face.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Will Negotiate and Argue on Your Behalf

DWI/DUI laws are often very complicated and the specific rules that affect each defendant can vary depending on the situation. If you or someone you know is charged with drunk driving or driving under the influence in New Jersey, knowing what your rights are can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients in Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

New Jersey DUI Lawyer – Why You Can’t Expunge a DWI / DUI Conviction in New Jersey and What That Means When Applying for a New Job

New-Jersey-Drunk-DrivingThe law in New Jersey is different than 48 other states in that it treats a DWI/DUI as a motor vehicle offense instead of a criminal violation. As such, driving under the influence of drugs or alcohol is recorded on a driver’s Department of Motor Vehicle (DMV) records, aka a driver’s abstract.

Moreover, in New Jersey, expungements are limited to only criminal offenses, and, since DUI/ DWIs in New Jersey are traffic offenses and not criminal offenses, a conviction for drunk driving can never be expunged from someone’s driving record. Only criminal arrests or convictions that fall under the 2C code can be expunged in New Jersey. However, this rule is not entirely negative. The rule does result in the benefit of the DWI/DUI not showing on an individual’s criminal history.

Note however, this doesn’t mean convicted offenders won’t face criminal penalties. The law considers driving under the influence as a pseudo-crime or quasi crime, and the consequences can be severe, including fines and loss of driving privileges. Prison time is also possible for a DWI/DUI, and it is mandatory when a driver commits a second or third offense. For example, by New Jersey law, third-time offenders are sentenced to a prison term of 180 days or more.

DWI/DUI and its Effect on Employment Applications

Since drunk driving is not considered a criminal offense under the New Jersey criminal code, drivers who have been convicted and are applying for jobs after their conviction do not have to answer, “yes,” if the employer asks if they have ever been convicted of a crime. Sometimes, however, employers may ask if a person has been convicted of anything but a minor traffic offense. DWI convictions are considered major traffic offenses, so in those cases, an applicant with a conviction for driving under the influence of alcohol or drugs should answer truthfully that they do have a history of more than just minor traffic offenses.

Many times, potential employers conduct background checks as part of their hiring process. Such background checks usually include an applicant’s driving record (which will show the drunk driving conviction), criminal record, court records and incarceration records. New Jersey does not report DUIs to the National Crime Information Center (NCIC) — a common criminal history database that employers check – so the DUI/DWI will not show on the NCIC check.

Exceptions – When You Must Disclose Your DWI/DUI Conviction to a Potential Employer or Other Reviewer

Title VII of the Civil Rights Act of 1964 prohibits employers across the United States from denying employment to individuals with a conviction unless they can prove a compelling business reason. Certain professions, like teachers, nurses, doctors and law enforcement officials, require disclosure as a condition of employment. There are other situations where a conviction must also disclosed, such as when a person is applying for a professional license – such as a law school graduate applying for admission to a state bar.

Notably, positions that require driving have obvious compelling business reasons to discriminate against DWI/DUI offenders. Therefore, someone with a DWI/DUI conviction who is applying for a position as a commercial truck driver, cab driver, delivery truck driver, etc. should disclose their prior DWI/DUI conviction.

For all these reasons, it is especially important to hire an experienced New Jersey DUI/DWI attorney if you have been arrested or charged with drunk driving in this state. Not only do penalties include the possibility of jail time, significant fines, and loss of driving privileges – a conviction for driving while intoxicated can also result in the loss of current of future job possibilities. An experienced lawyer can help you take advantage of certain laws that can lessen the penalties you must face or may be able to have the charges against you dismissed completely.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Help Drivers Facing DUI Charges

The law regarding criminal history checks and expungements of DWI/DUI can be complicated and is different for everyone, depending on their situation. If you or someone you know is charged with drunk driving or driving under the influence in New Jersey, knowing what your rights are can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients in Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

New Jersey DWI Attorney Discusses Auto Brewery Syndrome – Could it Be Responsible for Your DUI?

Auto-Brewery-SyndromeThe consequences for getting a convicted of driving under the influence of alcohol or drugs in the State of New Jersey are potentially devastating. Even a first offense can result in jail time, loss of license, fines, and the potential loss of your ability to work or provide for your family and loved ones. If you have already been convicted of one or more prior DWIs, any additional offense will result in much more devastating penalties: mandatory jail, loss of license, and other increased punishments compared to the first offense.

But what if you have been unfairly convicted because of a rare medical condition?

Auto Brewery Syndrome is a rare medical condition that could make it appear as if you have been drinking and driving, even when you haven’t. Also known as gut fermentation syndrome, the condition has even been known to lead to unfair charges for operating a motor vehicle under the influence of alcohol.

What is Auto Brewery Syndrome?

Auto Brewery Syndrome is a rare medical condition in which intoxicating amounts of ethanol – the scientific name for drinking alcohol – is spontaneously made within a person’s body in their digestive system. It is potentially caused by having an unusually large amount of active yeast in the body – possibly brewer’s yeast, also known as saccharomyces cerevisiae, which is normally used to turn sugars into alcohol when making beer or other liquors. An excess of yeast in the gastrointestinal tract can sometimes lead to a person’s body turning into its own brewery – making alcohol from sugar inside the body and getting a person drunk even when they have not had any alcohol to drink.

Brewer’s yeast can be found in a great many places, including breads, wine and beer. Usually, it just passes through the body harmlessly. In very rare cases, it takes up residence in the intestines and can multiply, leading to Auto Brewery Syndrome. Although researchers do not know the exact cause for the condition, some speculate that it can affect some individuals after taking antibiotics and leading to an intestinal imbalance.

Known Cases of Auto Brewery Syndrome

In one known case of Auto Brewery Syndrome, a man in Texas showed up to the Emergency Room complaining of dizziness. A quick test revealed he had a Blood Alcohol Content (BAC) of .37% – almost five times the legal limit for driving in the state. However, the man claimed he had not had a drop of alcohol. This was not the first time it had happened to him, either. After performing some studies on him, the doctors were able to confirm he had Auto Brewery Syndrome when they gave him a .12% BAC without drinking any alcohol, simply by feeding him carbohydrate rich foods.

Could Auto Brewery Syndrome Be the Cause of Your DUI?

Although Auto Brewery Syndrome is still not well-understood by the scientific and medical community, there are some cases where it has been used as a defense against drunk driving charges. Proving such a case can be very difficult, however, because the condition is not well-known and courts will be skeptical as to any defendant who claims he or she had a BAC over the legal limit but was not actually drinking. Evidence in such a case will need to include expert testimony from a doctor or other expert who can verify that a defendant suffers from the condition. If you suspect you or someone you know has Auto Brewery Syndrome, it is important to consult a physician to have any symptoms well-documented.

Furthermore, if you or someone you know has been arrested or charged with DUI/DWI, it is important to consult an experienced attorney immediately. A lawyer who specializes in drunk driving law will be able to review your case, look for rare circumstances such as Auto Brewery Syndrome, and help to prepare the best defense possible. With the right evidence, an experienced drunk driving attorney may be able to have the charges against you dropped completely.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Can Help, Even in Complicated Drunk Driving Cases

A charge for driving under the influence of alcohol is extremely serious and defending those cases often involve complicated evidentiary issues. For that reason, it is important to consult a drunk driving lawyer who understands and can review your case completely. An experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

New Jersey DWI Attorney Reminds You to Be Extra Careful About Drunk Driving Around the Holidays

A drink and car keys

With Thanksgiving just behind us, and holidays like Christmas, Hanukkah, and New Year’s Eve around the corner, we at the Law Office of Edward M. Janzekovich would like to remind you to be extra careful about drunk driving when it comes to going out and celebrating this festive and happy holiday season.

Not only should you be extra careful so that you can keep yourself and your loved ones safe, you should also be aware that police officers and government officials are on high alert for any potential drunk or intoxicated drivers during the holidays. One little mistake, such as thinking you can drive when your blood alcohol content (BAC) is actually above .08%, can result in serious consequences – such as fines, jail time, or loss of driving privileges – that affect you for years to come.

Heightened Police Activity and DUI Checkpoints

Last year, Pennsauken, Woodbridge, Spotswood, and Wall townships reported the most DWI arrests in the state between December 11, 2015 and January 1, 2016. This past Thanksgiving, NJ.com reported that at least 15 New Jersey towns planned to increase DUI patrols and checkpoints during the holiday weekend (http://www.nj.com/news/index.ssf/2016/11/where_nj_cops_are_increasing_dui_patrols_checkpoin.html). These included:

  • Atlantic Highlands
  • Aberdeen
  • Belmar
  • Hazlet
  • Highlands
  • Holmdel
  • Keyport
  • Keansburg
  • Matawan
  • Middletown
  • Neptune
  • New Brunswick
  • North Bergen
  • Union Beach
  • Union City

Between now and New Year’s Day, police officers across the state will be on the look-out for any signs or drunk driving. Therefore, if you plan to go out and drink this holiday season, you should take a taxi, call an Uber, or pick a designated driver. Otherwise, even if you don’t get in an accident and hurt yourself or others, you run the risk of getting arrested for drunk driving every time you choose to have even one drink and get behind the wheel.

DUI Checkpoints, Sobriety Tests, and Taking a Breathalyzer

Police officers will be most likely to set up DUI checkpoints at the location of bars or other venues where lots of people will be drinking. This is important, because it means you could be randomly stopped and checked for signs of drunk driving, even if you do not display any erratic behavior on the road – such as swerving, speeding, or braking unexpectedly – just for going to certain venues during the holidays. In New Jersey, police officers are actually prohibited from stopping cars based on appearance alone at checkpoints, so cars will be detained in a pre-selected pattern such as every car or every third car.

That means that even if you are driving perfectly, you could be pulled over at a DUI checkpoint. Then, if the police officer has reasonable suspicion to believe you were driving drunk – such as smelling alcohol on your breath – you could be asked to take a field sobriety test or possibly even take a breathalyzer.

Once you’ve taken a breathalyzer, any BAC reading of .08% or higher can potentially be used as proof of guilt for a charge of DUI/DWI. That means that even if you were driving perfectly, and you do not believe you did anything wrong, you could still be convicted of driving under the influence of alcohol based on your breathalyzer results. As we’ve discussed in this blog before, whether you are functional or coordinated during a sobriety test is not a defense against a BAC at or above 0.08%

Therefore, the best advice we can give you this holiday season is to be careful. If you or someone you know is arrested or charged with a DUI or DWI, it is important to contact an experienced attorney immediately. A professional drunk driving lawyer will review your case and can help fight the charges against you.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Is There for You This Holiday Season

If you or someone you know is charged for any crime relating to driving under the influence of alcohol or drugs, it is extremely important to contact an experienced DUI/DWI attorney who will explain what consequences you are facing in your specific situation. If you go to court, an experienced lawyer will also argue on your behalf and may be able to have the charges dropped entirely. Having an experienced drunk driving lawyer can make all the difference. To speak with an experienced New Jersey DWI/DUI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Drunk Driving Charges and Your Right to Receive Instructions in a Language You Can Understand

dwi-img

In all states, including New Jersey, if you arrested for driving while intoxicated, the police officer must read a “standard statement” that contains instructions telling the driver that he or she MUST submit to breath testing if there is probable cause to believe that the person was driving under the influence of alcohol. Part of the standard statement – sometimes referred to in New Jersey as Paragraph 36 – is the warning that if you refuse to submit to the breath test and “if a court finds you guilty of the refusal, you will be subject to various penalties, including license revocation of up to 20 years, a fine of up to $2000, installation of an ignition interlock, and referral to an Intoxicated Driver Resource Center. These penalties may be in addition to penalties imposed by the court for any other offense of which you are found guilty.” The entire statement is meant to inform you that there are serious consequences that will occur if you refuse to provide a breath sample. A copy of Paragraph 36, as updated in 2012, can be found at http://njpdresources.com/dui/pdfs/english1.pdf

But what happens if you or someone you know does not speak English? ¿Hablas Español? Nói tiếng Việt? Говорить по-русски? Another language? Regardless of what language you speak, New Jersey law also provides that you have a right to have these instructions provided to you in a language that you can understand. Otherwise, it is possible that your rights are being impermissibly violated.

State v. Rodriguez-Alejo

In State v. Rodriguez-Alejo, a Spanish-speaking man who could barely speak English, and who had only been in the United States for two years and had taken his driving test in Spanish, was pulled over and suspected of drunk driving.  At the police station, the officer attempted to read the standard instructions to the defendant, and the man stated that he did not understand.   Although he tried to follow along with the police officer anyway, who used a combination of words and gestures to provide instructions, the defendant was not able to provide a proper breath sample and was later convicted for refusing to comply with the breath sample requirements.

On appeal, the New Jersey Superior Court Appellate Division restated that a police officer must read the standard statement to any defendant who is arrested for DWI/DUI, and the defendant must CLEARLY agree to submit to a breathalyzer test. Therefore, the Court held that reading the standard statement to motorists in a language they do not speak is the same thing as not reading the statement at all.

In order to be “informed” of the warnings that are provided in Paragraph 36, the information must be given to the defendant in a language he or she speaks and understands. The same reasoning applies to any instructions that are given to a defendant about how to actually take a breathalyzer test. Based on this holding, the Court decided that the Spanish-speaking defendant could not be convicted for refusing to provide a breath sample.

State v. Shaymardanov

It is important to note, however, that a defendant only needs to understand the instructions being given to him – the instructions do not need to be given in the defendant’s best or native language.

Recently, in the case of State v. Shaymardanov, the Appellate Division revisited State v. Rodriguez-Alejo with regard to a Russian-speaking defendant who was pulled over and charged with driving under the influence of alcohol. Although the Court determined that Rodriguez-Alejo was still good law, the Appellate Division upheld the conviction, finding that the driver always appeared to understand the police officer and the police officer had no trouble understanding the defendant.

Instructions Available in Other Languages

Since at least 2010, the State has arranged for certified translated versions of the standard statement to be prepared—in both written and audio form—in the nine foreign languages in which the MVC offers the written driver’s test – Arabic, Chinese (Mandarin), French, Japanese, Korean, Polish, Portuguese, Russian, and Spanish. If you or someone you care about is arrested on suspicion of drunk driving, it is likely that the police will be able to provide you with instructions in a language you can understand. While you should always contact an experienced New Jersey DWI / DUI lawyer / attorney if you are charged, an attorney may be able to help if you were never provided with instructions in a language you could understand.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Will Fight to Make Sure Your Rights Were Protected

If you or someone you know is charged for any crime relating to driving under the influence of alcohol or drugs, it is extremely important to contact an experienced DUI/DWI attorney who can explain what rights you have in your specific situation. If you go to court, an experienced lawyer can also make sure you get the best result possible. Having an experienced drunk driving lawyer can make all the difference. To speak with an experienced New Jersey DWI/DUI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Your Right to an Independent Blood Alcohol Test

Drunk-Driving-Attorney

In New Jersey, if you are pulled over and the officer suspects you were driving drunk, he or she may use a breathalyzer test to measure your blood alcohol content (BAC), which can be used as evidence against you if you are later charged for DUI/DWI. Police stations across the state use a machine called the Alcotest 7110 MK-IIIC to measure your BAC and determine whether or not you are at or over the legal limit of .08%.

Importantly, many drivers do not know that if you submit to a breathalyzer test, you also have the right to an independent test of your urine, blood, or breath sample. If your BAC results are close to .08%, an independent test can show that the breathalyzer results were inaccurate and you were actually below the legal limit for drunk driving. Similarly, the law requires that you be informed of your right to an independent chemical test, and, if you can prove that the government failed to inform you of this right, you may be able to have the breathalyzer evidence thrown out.

As always, challenging the evidence against you in a DUI/DWI trial can be very complicated, and it is important to retain an experienced drunk driving lawyer if you or a loved one is charged with driving under the influence of alcohol or drugs, in order to ensure that the best defense is presented on your behalf.

Your Legal Right to an Independent Breath, Blood, or Urine Test

N.J.S.A. 39:4–50.2 establishes that drunk driving is a quasi-crime, and a driver who is suspected of drunk driving does not have a right to refuse to provide a breath sample (as discussed previously in this blog). At the same time, if a police officer decides a driver must provide a breath sample for the purposes of determining BAC, N.J.S.A. 39:4–50.2 also provides the same driver with the right to have a person or physician of the driver’s own choosing perform an independent breath, urine, and blood test. This protects the driver’s rights and helps to ensure that any BAC test performed by the police is accurate.

Learning About Your Right to an Independent Test

New Jersey law actually states that a defendant must be informed of his or her right to an independent test by the police officer who orders the breath test. Of course, this is limited to situations in which the individual is required to provide a breath sample, and there is no equivalent requirement in the event that BAC is calculated based on a blood sample.

In practice, police officers in most police stations will read a series of pre-printed paragraphs to any driver who is being asked to provide a breath sample. These paragraphs generally include a statement – referred to in many places as “paragraph 36” – that attempts to inform the driver of his or her right to obtain an independent test. The courts have considered this to be sufficient notice under the law.

If no notice is provided to a driver when he or she is asked to provide a breath sample, then an experienced attorney may be able to keep out any BAC evidence obtained by the police officers at the time of trial.

Having an Independent BAC Test Performed

The law does not require a police officer or a police station to have any established procedures to help a driver obtain an independent chemical test – however, the law is clear that police may not interfere with or thwart a suspect drunk driver’s attempt to exercise the right to independent examination.

Therefore, a driver is largely on his or her own with regard to obtain an independent chemical test. He or she may do this by contacting an attorney or family member who can help get an independent test done. In State v. Jalkiewicz, the court ruled that the police fulfilled its duty when it advised the defendant of his right to an independent test and then summoned a taxi cab for the driver.

At the same time, in State v. Bradley and State v. Nicastro, the court ruled that the government actively prevented suspected drunk drivers from exercising their rights to an independent BAC test when the police refused the drivers’ request to be taken to the hospital for an independent test and also refused the drivers’ request to call a taxi to take them to the hospital. In both of these cases, the court determined that the BAC test results taken by the police could not be used in court.

Finally, in State v. Greeley, the Supreme Court determined that if the police refuse a suspected drunk driver’s request for a taxi, there must be some means for the person to obtain an independent chemical test, such as being released into the custody of a family member or friend.

As in Bradley and Nicastro, it is extremely important that you contact an experienced attorney whenever you are charged or suspected of a DUI or DWI. An attorney can help provide the best defense in your case and ensure that your rights have not be violated.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Will Fight for Your Rights

If you or someone you know is charged or suspected of driving under the influence of alcohol or drugs, it is extremely important to contact an experienced DUI/DWI attorney who can explain what rights you have in your specific situation.  If you go to court, an experienced lawyer can also make sure you get the best result possible and can make all the difference.  To speak with an experienced New Jersey DWI/DUI lawyer bout your situation, call us at 732-257-1137 contact us online today. We serve clients throughout the state of New Jersey.

Police Can Search Your Car Without a Warrant…Again.

No Warrant Required

Today, the New Jersey Supreme Court just reversed its position on the Warrant Requirement for searches of motor vehicles. NJ Supreme Court ruled in 2009 that police must obtain a warrant to search a motor vehicle, unless exigent circumstances were present. State v Pena Flores (2009).

This morning they decided in State v Witt, that the exigent circumstances standard set forth in Pena-Flores was unsound in principle and unworkable in practice to obtain warrants. They ruled that: The Automobile Exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous.

The Pena-Flores rule basically required police to request consent to search the vehicle from the owner/operator of the vehicle if probable cause was present, and if denied, they could apply for a telephonic warrant to search the vehicle.  Consent is no longer required.

Allowing a Drunk Driver to Operate a Motor Vehicle in NJ

 

Most people are aware that if they operate a motor vehicle while intoxicated, they can be charged with a DWI offense. But what very few people are aware of is that even if you are not driving the vehicle, you could still be found guilty of a DWI violation.

The New Jersey DWI statute is NJSA 39:4-50. Section (A) of this statute states: Except as provided in subsection (g) (school zone) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of.08% or more by weight of alcohol in the defendants blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of.08% or more by weight of alcohol in the defendants blood shall be subject : The penalties are all exactly the same regardless if you are driving drunk or allowing a person to drive drunk. The New jersey Supreme Court holds the Allowing offense at the same level of responsibility as the act of actual drunk driving, banning any plea bargaining, adhering to the Zero Tolerance policy. In State v Hessan, the Court said ” The act of unleashing a drunk driver onto the highways creates the very risk to the safety of other drivers and the public that is posed by the intoxicated driver.”  However, on an Allowing offense, the State has to prove additional different elements than the original DWI charge.

The State has to prove that the person being charged with the allowing offense had owned the vehicle or had custody and control over it. The State also has to prove that the person being charged with the allowing offense had knowledge of the intoxication of the driver and had their consent to operate the vehicle. These elements are not so easy to prove at times.

A typical scenario for an allowing a drunk driver to operate a motor vehicle violation is when two or more friends go out drinking.  At the end of the night, the driver tells the passengers that he is too drunk to drive home, and one of the passengers decide to drive home because they are only buzzed. The police stop the vehicle, the drunk owner is sound asleep in the passenger seat completely unaware as to what is happening. Both are arrested and charged with DWI.  The same scenario happens if the registered owner of the vehicle is completely sober, in the passenger seat, but the driver is intoxicated. This is typically a husband and wife scenario in the vehicle.

If you or a loved one has been charged with an Allowing offense, you should hire a lawyer whose sole practice specializes in DWI / DUI defense. The facts and circumstances surrounding the allegation of the charge need to be closely examined to identify available defenses and mitigating factors.

The Law Office of Edward M. Janzekovich is a law firm with a sole focus of defending persons charged with DWI / DUI related offenses. The defense strategy used is to identify legal discrepancies in police procedure that implicate constitutional, medical, scientific or evidentiary issues, with the motor vehicle stop, field sobriety tests and blood alcohol tests.

Implied Consent

Most people are aware that if they are stopped by law enforcement and there is reasonable suspicion that they are driving while intoxicated, the driver is required to provide a sample to determine if they are under the influence, but a sample of what?  The law varies from state to state.  For instance:

The Implied Consent Law in New Jersey is different than that of Rhode Island.  In Rhode Island, Implied Consent means that any person who drives a motor vehicle in Rhode Island has given consent to Chemical Test (Breath-Blood-Urine – arresting officers choice apparently) to determine the amount of alcohol/drugs, if any,  in your system after you have been arrested for suspected driving while intoxicated (DWI).   Refusing to provide that sample is an additional charge carrying additional license suspensions and fines. (source – RI DMV website)

The New Jersey Implied Consent Law that states that all persons operating a motor vehicle on New Jersey roadways has agreed to submit to a Breath Test following an arrest for suspected drinking and driving.  In addition to the original underlying penalties of the driving while intoxicated offense, failing to provide a breath sample will result in an additional charge carrying an additional period of suspension and other penalties.

However, New Jersey’s implied consent law does not currently mandate that you submit to a blood test or urine test.  If taken to the hospital as a result of an investigation, such as an accident, you most likely did not perform standardized field sobriety tests.  If you are suspected of being under the influence of an alcohol or drug, you will be asked for your consent to voluntarily provide a sample of your blood or urine to test.  This is because although the breath test machine used in New Jersey, the Alcotest 7110c, is designed to be mobile and transportable to the scene or hospital, it is not the practice in New Jersey.  So to gather evidence of intoxication to be used against you, your blood or urine will be required.

If you believe you have alcohol or drugs in your system, or if you just do not want to, you should refuse to voluntarily give consent for the collection of your blood or urine.  If a DWI charge is to be pursued against you, a judge would have to issue a warrant (Fourth Amendment protections against unreasonable searches and seizures – barring exigent circumstances) for non-consensual blood testing to collect a sample. However, if a warrant is obtained, you are legally required to provide the type of sample described in the warrant and reasonable force may be used to collect that sample if necessary.  Refusing to provide a sample after a warrant is issued will result in an additional charge(s) carrying additional license suspensions and penalties, which may also expose you to potential criminal charges.

So, according to the Rhode Island Division of Motor Vehicle website, a New Jersey resident on vacation, visiting a relative or just driving through Rhode Island that is stopped for a suspected DWI is required to submit to chemical testing.  Chemical testing of your breath, blood or urine, without the need of a warrant, even though as a New Jersey license holder, your implied consent requirements are for only breath samples.

* Disclaimer – Edward Janzekovich is a licensed attorney in the State of New Jersey and not in Rhode Island.  The information provided is to contrast implied consent laws between NJ and RI. Information is obtained directly from the Rhode Island DMV website and this is not to be interpreted as providing Rhode Island legal advice.