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.

Last Call for Alcohol

Last Call for Alcohol – the drink that may get you arrested.
Over the course of my careers as police lieutenant and an attorney, I have spoken and dealt with hundreds of people charged with DWI.  A common theme is the individual is getting ready to leave the bar or friends house to drive home and the “last call” is made and that individual has just one more drink.   They believe they feel fine, and can have one more before they hit the road.  The problem is that by the time that last drink is absorbed into their system, they are now driving down the road.  They now feel the effect of the alcohol and catch themselves weaving, making driving mistakes they would never normally make.

New Jersey does not allow what is referred to as a “Safe Haven” for driving while intoxicated, meaning that if you are driving home and you start to feel the effects of the alcohol, you can pull off to the side of the road and sleep it off or call for a sober driver to come get you.  In New Jersey, once you demonstrate intent to operate a motor vehicle, you cannot reverse it by pulling into a rest stop or the side of the road.  If an officer comes in contact with you within a reasonable period of time from when you were actually operating the vehicle and they can proof it, you can be charged with DWI if you demonstrate signs of intoxication.

As you can see from my prior post containing the blood alcohol charts for men and women, 1 more drink can quickly move you into the Per Se category (.08% BAC or higher) of driving while intoxicated and definitely place you into the Buzzed driver group.  Both of which expose you to the possibility of being arrested for DWI and/or injuring others including yourself.

Many of those people I have encountered over my careers regretted having that last call drink.  Food for thought.

 

 

New Jersey Has Two Ways to be Convicted of DWI – DUI

In New Jersey there are two ways to be convicted of driving while intoxicated.  The first is the Per Se law.  It is illegal to drink and drive a vehicle with a BAC of .08% or more (or operating a commercial vehicle with a .04% BAC or more).  Even if you believe that level of alcohol did not impair you, you are Per Se driving while intoxicated.  However, if your BAC is lower than .08%, you can still be charged with DWI if the amount of alcohol you consumed impaired your ability to operate your vehicle.  This is commonly referred to as “Buzzed Driving” and is prosecuted as an Observation Case.

In an observation case, the investigating officer testifies in front of the judge about his/her observations.  Basically – (1) the reason the vehicle was stopped – traffic violation, motorist aid, accident, and such, (2) initial interactions – conversation with driver, can’t locate credentials, disoriented, slow lethargic hand movements, odor of alcohol, admission of drinking, bloodshot watery eyes, fumbling, dropping documents, slurred speech and such, and then (3) results of standardized field sobriety tests performed.  At this point the judge evaluates the testimony of the officer and defense witnesses to determine if he/she (judge) thinks the person was intoxicated at the time the vehicle was operated.  If the judge thinks so, guilty of DWI.

DWI With Children In Car

Besides the DWI, possession of marijuana, marijuana in a motor vehicle, and the other slew of charges for her outrageous behavior, if it happened in New Jersey, she would probably be charged additionally with Endangering the Welfare of Children N.J.S.A. 2C:24-4(a)(2) because actions of a parent or guardian that expose minors to potential harm that could make them an abused or neglected child are, depending on the circumstances guilty of a 2nd or 3rd degree crime, and Driving While Intoxicated with a Minor Passenger N.J.S.A. 39:4-50.15(c) – because a parent or guardian who is convicted of DWI and who, at the time of the violation, has a minor as a passenger in the motor vehicle is guilty of a disorderly persons offense. The respective statutes describe a Minor for N.J.S.A. 39:4-50.15(c) as anyone who is 17 years of age or younger and a Child for N.J.S.A. 2C:24-4(a)(2) as any person under 18 years of age.

 

Police: Woman street racing with child on-board arrested for DUI

Taylor Viydo, KREM 9:23 p.m. MDT June 8, 2015

Shariah Whitney(Photo: KREM)

POST FALLS, Idaho – The Kootenai County Sheriff’s Office is investigating a woman who was driving while intoxicated with a child in the car on Sunday.

According to police, Shariah L. Whitney was street racing with another vehicle at Spokane Street and West Riverview Drive on Sunday. The other vehicle she was racing lost control and stuck a concrete island, before striking a parked car.

When police arrived, they arrested the Spokane Valley resident for driving under the influence. Officials said Whitney also had her 5-year-old daughter in the car when this happened. Court records showed a 15-year-old was in the vehicle, too.

Police have not said if Whitney will face additional charges for having a child in the car with her.

On Monday, the judge set Whitney’s bond at $3,600. Court records stated that her blood alcohol content registered at more than .20. Police wrote that Whitney also had marijuana with her at the time of the crash.

Actor Sam Shepard was arrested for DWI

Actor Sam Shepard was arrested for DWI in New Mexico on May 25, 2015 after the police were investigating a possible drunk driver call. According to the reports, Mr. Shepard exhibited outward signs of intoxication of bloodshot watery eyes , and an odor of alcohol (presumably on his breath) and he admitted to consuming “roughly” 2 tequila type drinks. He refused to give a breath sample and failed the field sobriety tests. Mr. Shepard was booked into the Santa Fe County Jail on a charge of aggravated driving while intoxicated

 

In New Jersey, a typical DWI conviction is a traffic violation, and not a criminal offense. However, the penalties associated with it are severe. If found guilty of a DUI/DWI in New Jersey, you will be exposed to a loss of license (90 days to 10 years, depending on your history), be required to attend counseling classes (IDRC, minimum of 12 hours and a lot longer if they determine you need more counseling), possible jail up to 6 months depending on your history, community service, monetary fines, State surcharges, possible interlock device in your car, and insurance points. If in a school zone, some of the penalties are doubled – a school zone is any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property.

 

A onetime lapse of judgment can be devastating. That is just from the State alone. Most people require a drivers license to either work, attend school, or perform simple family tasks on a daily basis.

How you perform on the standardized field sobriety tests you are asked to complete will most times be the decision point of whether or not you are arrested for DWI. When evaluating your performance post arrest, many factors are considered, some common ones are: The area you were performing the tests – lighting, flat level surface, free of debris, foot wear, existing medical conditions; the instructions and demonstrations provided so that you could understand what is actually being asked of you to do, the level of training of persons involved, and was your performance correctly interpreted to the Standard.

 

In New Jersey, you are required to give a breath sample if the police have reasonable suspicion that you were drinking and driving. Refusing to give that sample will lead to additional charges and penalties.

 

Sam Shepard article:

 

http://www.nbcnews.com/pop-culture/pop-culture-news/sam-shepard-playwright-actor-arrested-drunken-driving-charge-n365036

Drunk Driving Discovery

CRIMINAL LAW AND PROCEDURE — DISCOVERY — DRUNK DRIVING

14-2-8052 State v. Carrero, App. Div. (Sabatino, J.A.D.) (28 pp.) We review discovery orders separately issued in these two DWI cases authorizing defense counsel and/or defense experts to inspect and photograph rooms within the police stations where their respective clients provided breath samples on the Alcotest device in order to verify that the tests were properly administered. In Carrero, such access was granted to help ascertain whether devices emitting radio frequency interference (RFI) had been located in the station within 100 feet of the testing area. In Baluski, such access was granted to help ascertain whether the interior layout of the station physically prevented defendant from being observed for the required 20 minutes before testing. We reverse the discovery orders because neither defendant has shown a reasonable justification to conduct the requested inspection. We conclude that Carrero’s request is insufficient in light of the Supreme Court’s binding legal and evidentiary determination in State v. Chun, 194 N.J. 54, 89, cert. denied, 555 U.S. 825, 129 S.Ct. 158, 172 L.Ed.2d 41 (2008), that the Alcotest is designed in a manner that is “well shielded from the impact of any potential RFI,” and also in light of the state’s countervailing security interests disfavoring routine civilian access to the interior of a police station.

We conclude that Baluski’s request is likewise insufficient because he has presented no affirmative basis to believe that an officer failed to observe him for the 20 pretesting minutes required by Chun, 194 N.J. at 79, and also in light of the state’s countervailing security interests.

Source – NJSBA Daily Briefing

DRUNK DRIVING — SPEEDY TRIAL

CRIMINAL LAW & PROCEDURE — DRUNK DRIVING — SPEEDY TRIAL

14-2-7618 State v. Vanderkooy, App. Div. (18 pp.) Defendant challenges his convictions for driving while intoxicated, refusal to take a breathalyzer test, and speeding in the Law Division at a trial de novo based on the record developed in the municipal court.

The panel affirms, finding that:

  1. defendant was not denied his right to a speedy trial where both parties are responsible for various delays, whether due to scheduling conflicts, discovery delays, or requesting a Frye hearing, the amount of time elapsed is mostly due to the Frye hearing, and defendant did not prove prejudice sufficient to warrant a speedy trial violation;
  2. defendant was not denied the requested discovery regarding the radar gun or the State’s radar gun expert;
  3. the State presented sufficient evidence of the scientific reliability of the Stalker Dual SL radar device used by police;
  4. there was sufficient evidence in the record of the operator’s training and testing of the radar device to admit the radar reading into evidence;
  5. defendant cannot establish that the municipal court judge or trial judge erred in finding the police officer’s testimony credible; and
  6. based on the officer’s observations and defendant’s conduct, it is clear that probable cause to arrest existed and the State established beyond a reasonable doubt that he is guilty of DWI.

Source – NJSBA Daily Briefing

CRIMINAL LAW AND PROCEDURE

14-2-7046 State v. Barfuss, App. Div. (per curiam) (12 pp.) Defendant appeals from the Law Division order denying his post-sentence motion to vacate his guilty plea to Driving Under the Influence (DUI). defendant contends that he should be allowed to vacate the guilty plea because the factual basis in support of his plea was inadequate to prove that he “operated” the vehicle as required by the DUI statute. The appellate panel agrees and reverses. The record does not contain any evidence that defendant made any “physical movement to put the car in motion” at the time.

Unable to find any New Jersey cases upholding a conviction for DUI for having the keys in one’s pocket and a future intent to drive home without any corroborating physical attempt to move the vehicle, the panel concludes that the facts articulated by defendant did not provide an adequate factual basis for his guilty plea. After balancing the four Slater factors, the panel finds that defendant has met his burden and is entitled to withdraw his guilty plea and have the charges reinstated to correct a manifest injustice.

Source – NJSBA Daily Briefing