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