New Jersey has recently passed a law that will become effective sometime in June 2011.  The law is conceived to create a criminal violation for driving on the revoked list where the underlying cause of revocation was either a drunk driving conviction or a refusal conviction.

Specifically, the first section of the law states that if a defendant has been convicted of two driving while revoked offenses during the same term of license suspension created by the drunk driving or refusal offense, it will be a crime of the fourth degree.
 
The second component of the law allows for a fourth degree conviction if the defendant is operating a vehicle while on the revoked list where the underlying cause of revocation was a second drunk driving or refusal conviction.

A mandatory jail term of not less than 180 will be imposed, where the defendant will not be eligible for parole if he/she violates any of these two sections of the law. 

Today, many police patrol vehicles are equipped with video cameras to capture events that occur as a result of a police stop or encounter.   These video cameras are especially important in the prosecution of drunk driving (DWI) cases. 

In a recent case, an appellate court rejected a defendant’s argument that the government’s destruction of the video tape of the arrest violated the defendant’s due process right which prohibits the government from destroying exculpatory evidence.  The case had some unusual twists.  Apparently, the defendant pled guilty to a Drunk Driving (DWI/DUI) offense, while the New Jersey Supreme Court was analyzing the reliability of the Alcotest in State v. Chun.  After the court’s decision in the Chun, the defendant engaged another attorney and sought to vacate the plea  arguing in essence that defendant had not been provided the video tape of the arrest and, that since the video tape had been destroyed, the case should be dismissed.  The application to vacate the plea was filed almost over twenty months after the date the plea was originally entered. 

In rendering its decision, the court concluded that the defendant had failed to establish that the video tape had any exculpatory value because defendant’s guilt was overwhelming.  The basis of the court’s decision hinged on the fact that the defendant previously pled guilty to DWI and gave a factual basis to justify the plea.  In addition, the Alcotest established her intoxication as a matter of law.  Finally,  the court observed that there was no indication of bad faith or official contrivance because the video tape had been deleted in the ordinary course of the government’s business.

New Jersey's Drunk Driving (DWI/DUI) Statute (Statute), authorizes the imposition of harsh penalties for repeat offenders.  A second offender can receive a mandatory term of imprisonment of not less than 48 consecutive hours nor more than 90 days.  A third offender will be required to serve a mandatory term of imprisonment of 180 days.

Almost twenty years ago, New Jersey Supreme Court held that a prior conviction for drunk driving (DWI/DUI) case could not be used to enhance the penalties of a subsequent drunk driving (DWI/DUI) conviction if the prior conviction occurred without the assistance of a lawyer or an express waiver from the defendant as to his/her right to a lawyer.  This remedial rule only applied to the defendant's exposure to a jail term.  Thus, if the defendant was a second offender, with a prior uncounselled conviction, the trial court can only impose a first offender jail term.  All other penalties, including fines, administrative surcharges and llicense suspensions can be imposed as if the defendant was a second offender.

In order to obtain the benefit of an uncounselled prior conviction, a drunk driving (DWI/DUI) defendant has the burden to establish that he/she was not given appropriate advise as to his/her right to counsel or an assignment of counsel if he/she could not afford one.  In order to obtain the benefit of this rule, the application must be made before the municipal court where the prior conviction occurred.

DRUNK DRIVING (DWI/DUI) IN BERGEN AND PASSAIC COUNTIES:
    MUNICIPAL COURT JUDGES ARE DISCIPLINED FOR DWI CONVICTIONS

A few weeks ago, the Supreme Court disciplined two municipal court judges for their drunk driving convictions. Those judges were Robert Jones who was a municipal court judge in Livingston and Peter Tourson, who presided in Cape May, Stone Harbor and Middletown.

Tourson was arrested when he was driving the wrong way on a road in Cape May County and forced a driver onto the shoulder of the road to avoid the crash. At police headquarters, Tourson attempted to apply Chapstick to his lips which could impede the reliability of the breath test. When the police officer confiscated the tube.  Tourson produced a second stick of Chapstick and attempted to apply it to his lips again. That tube was also confiscated. Later, Tourson attempted to place a penny under his tongue to further interfere with the reliability of the breath test.

Jones was arrested in February 2008 in Parsippany, Troy Hills. While he denied having anything to drink, his blood alcohol concentration was 0.16%. The ethics committee made special comment about Jones' dishonesty when asked about alcohol consumption.

Under the Supreme Court guidelines, judges charged with or convicted of drunk driving are disqualified from handling cases of that type for one year.

A recent bill has been introduced in New Jersey  that would require all persons convicted of drunk driving (DWI/DUI) offenses to install an interlocking device on their motor vehicle ignition system. In order to engage a motor vehicle engine once this device has been installed,  the operator will have to provide a breath sample by blowing into a mouth piece attached to the device. If the device detects a blood alcohol concentration (BAC)of 0.04% the engine can not start.

The bill would require first offenders to maintain the device for a period of six (6) month; second offenders for a period of two (2) years, and, third offenders for ten (10) years. The bill does  not contain a provision that would require persons convicted of refusing to take a breath test to install the ignition interlocking device. Some detractors contend that the new law will cause more drivers to refuse to take the breath test. Others complain that the seventy-five ($75.00) dollar a month fee for the maintenance of the device will produce an unnecessary financial hardship. The biggest controversy that may result from a law of this type, however,  relates to the scientific reliability of the device. Thus far, the courts have not concluded  that the device is  accurate or reliable. That issue may produce years of litigation.

The bill was called "Ricci's Law" after Ricci Branca a youth who was run down by a drunk driver while riding his bicycle. The intoxicated driver had a BAC of .339. Drunk driving law in bergen county.