Volume 1 of Handbook

The Volatile Environment(1 of 7)

The consequences of a conviction for driving while intoxicated (DWI Offense) or refusing to submit to breath test (Refusal Offense) are enormous. Apart from the personal embarrassment and social stigma associated with a conviction of one of these offenses, the law provides the sentencing court with a whole constellation of penalties, including periods of incarceration, mandatory loss of driving privileges for an extended term and thousands of dollars of financial sanctions. The extent of these penalties increases almost exponentially with the number of prior DWI Offense convictions you may have and whether the offense occurred in a school zone. (School Zone Offense).

The prospect of success in every legal controversy is influenced by a number of important considerations including the ability of your lawyer, the quality of your evidence and the capabilities of your trial judge. One of the most critical factors, however, is the political and social environment in which the contest is litigated. In order to truly appreciate the nature and extent of your present predicament, it is important that you know about the special environment that affects these types of cases.

Today, 18 million Americans meet the diagnostic criteria for alcohol abuse or alcoholism. Forty percent of all violent crimes were committed by people who were under the influence of alcohol. In 2003, 1.4 million drivers were arrested in this country for alcohol-related offenses, which equates to 1 arrest for every 135 drivers. Drivers with a blood alcohol concentration (BAC) over .15% are more than 200 times more likely to be involved in a fatal crash than a non-drinking driver. Half of all teenage fatalities are alcohol-related. In 1996, 8 young people a day died because of alcohol-related crashes. In 2004, there were over 17,600 alcohol related deaths in New Jersey. The cost for treating the survivors of these crashes averaged $67,000 a person. On a national level and for teenage accident alone, the costs in property damage and health care expenses is $14,000,000,000

The National Highway Traffic Safety Administration reports that nearly 97 % of Americans view drunk drivers as a threat to their families and themselves. Indeed, Americans rank the need for tougher enforcement of drunk driving laws ahead of healthcare, poverty, the environment and gun control. As a result, most, if not all, states have implemented a get tough attitude toward drunk drivers.

The compulsion of these political and social factors has produced an extremely hostile attitude toward people accused of DWI-related offenses. In one case, New Jersey's Supreme Court stated that the courts in New Jersey are working in tandem with the legislature to remove the obstacles that can Aimpede the efficient and successful prosecution of drunk drivers. This remarkable declaration clearly joins New Jersey's judiciary and its legislators in a common cause to aggressively prosecute drunk drivers. This avowed philosophy is inconsistent with core concepts contained in our federal and state constitutions that require the Aseparation of powers of the three branches of government, so as to allow one branch to check and balancethe others.

The Government's Case (2 of 7)

In order to convict you of a Drunk Driving/DWI offense, the government must prove certain facts. An analysis of the most common of those facts are recited below:
A. Operation of a Motor Vehicle
The statutes that control a DWI Offense require Aoperation of a motor vehicle.@ While these laws may not apply to bicycles, they do apply to traditional motor vehicles, as well as mopeds and snowmobiles. They will also apply even if you are not operating a vehicle on a public road, (e.g., in your garage, in a private parking lot or on a service road).
Although the term Aoperation@ in the context of a DWI Offense should be understood without confusion or controversy by the ordinary citizen, the concept seems to have been strained by the pro-government bias referenced above. Thus, you can be found guilty if you are intoxicated and asleep in a vehicle with the key in the ignition and the engine off or if you are steering a vehicle down an incline where the vehicle is out of gas and the key in the off position.
B. Under the Influence

You can be convicted of a DWI Offense if you are under the influence of alcohol or drugs, or a combination of both, even if the drug has been legally prescribed or administered. A recent amendment to the statute has broadened its language to include any chemical vapors which, when inhaled, can cause intoxication or inebriation. You do not have to be Adrunk@ in the common understanding of the word. It is sufficient if either your physical or mental capabilities are adversely influenced to the point where it would be Aimproper@ for you to drive.
The government will usually attempt to establish this component of its case against you with a scientific test (i.e. breath, blood or urine), demeanor evidence (i.e. the symptomology displayed by the citizen at the time of the arrest) and opinion evidence. Notably, you can be convicted of a DWI Offense on the basis of just one of these three categories of evidence.
1. Scientific Tests
If your BAC exceeds .08% you are presumed guilty of a DWI Offense. The mere operation of a motor vehicle where your BAC exceeds .08% is the offense. No other evidence is necessary for a conviction and, for that reason, a case with a .08% BAC is referred to as a Aper se @ violation.
The most common method of determining a BAC is a breath test, which is usually conducted shortly after the arrest. The equipment usually used to analyze the BAC from an arrestee's breath sample is called a Breathalyzer. 1 Over the last 20 years, New Jersey's Supreme Court has seriously curtailed the nature and extent of the defenses that can be used to challenge the integrity and reliability of this test.
The major defensive challenges that remain relate to: (a) certain physical/ medical conditions of the subject; (b) defects in the Breathalyzer operator's credentials; (c) defects in the equipment; (d) the protocol used by the operator; and, (e) the nature of the measuring tolerances attending the use of a Breathalyzer. Since the scientific test offered by the government, standing alone, can convict you, it is critical that each of these issues is explored zealously and aggressively, and that the trial court is persuaded to analyze them with the most critical of eyes.
Suffice it to say here that these defense issues require an in-depth analysis of the facts specific to every case, and the advice of one or more expert witnesses. The experts I use to develop these issues are Richard Saferstein, Ph.D., and Gary Aramini. Dr. Saferstein was the Chief Forensic Scientist at the New Jersey State Police Crime Lab for approximately 21 years. Mr. Aramini is a former member of the New Jersey State Police who, for over 19 years, tested and calibrated the Breathalyzer, as well as other similar devices, and trained state and local law enforcement agents on the proper use of breath test equipment.
2. Demeanor Evidence
In most DWI and Refusal Offenses the investigating officer will fill out a form called a Drinking Driving Report. This form is conceived to memorialize the investigating officer;s observation of your appearance at the time of the stop and the events that follow. This form will identify things like: (a) your ability to walk and stand (i.e. falling, sagging, staggering, swaying, etc.); (b) your speech (i.e. slobbering, slurred, incoherent, etc.); (c) the condition of your eyes (i.e. bloodshot, watering, etc.) or face (i.e. flushed or pale); and (d) your clothing (i.e., disheveled, dirty, etc.).
In addition, the government will request you to perform certain psycho/physical tests which are referred to as Field Sobriety Tests. These tests will be performed at the arrest site and sometimes later at police headquarters. The function of this type of evidence, along with your other symptoms, is to provide the investigating officer with enough information to establish Acause@ to require you to participate in a breath test. Evidence of this nature will also be used at trial to establish your level of intoxication. The general idea is that your comportment or demeanor as well as your performance on the Field Sobriety Tests are circumstantial evidence of your guilt.
While a successful attack on a BAC in excess of .08% is seriously circumscribed by the law, one's ability to overcome the intellectual persuasion of demeanor evidence is not as difficult. A police officer's testimony as to your symptomology at the time of your arrest can be counterpoised against a multitude of evidential responses that militate against a conclusion that you were under the influence of alcohol or drugs. For example, people display bloodshot eyes because they are tired or have their contact lens in too long. Your face may be flushed because that is your natural complexion or the complexion you show when you are excited. You may stagger, sway or hold on for support because you have a head injury, problems with your back, knees or hips. You may even have an inner ear problem. Your speech may be slurred because of a head injury or other physical impairment, as well as the stress or the excitement of the moment. Indeed, there is a well-known phenomenon called Ablack and white fever@ 2 where one=s anxiety during a police encounter may produce aberrant responses or conduct and, that is especially so, where a large, aggressive police officer may be brandishing his gun or baton.
As to the Field Sobriety Tests, you may not have been able to perform most of these tests even when sober, and that is especially true if you have any physical deficits. You may have failed these tests or performed poorly because you were nervous or because the tests were conducted under stressful conditions, such as late at night, or on a busy road with other cars zooming by or the exercise was performed on a beveled or uneven road surface with poor footing. Finally, these tests may not be probative or admissible because the investigating officer did not give you proper instructions.
In short, more often than not, a good trial lawyer will be able to neutralize the persuasiveness of demeanor evidence, especially if the government does not have a video tape of your behavior at the time of your arrest. Indeed, the government's failure to videotape your demeanor should be developed at trial and the court should be requested to infer that a failure to do so infects the integrity and worth of the police officer's testimony on this issue, especially where the arresting authorities formerly used video tapes or have the capacity to videotape a DWI suspect. The value of this type of argument is seriously influenced by recent developments in the law, where the courts are requiring video tapes of confessions in cases involving serious criminal conduct.
3. Opinion Evidence
Invariably, after the investigating officer testifies about his/her observations relating to your demeanor, he/she will next testify that he/she has significant experience as a police officer in interdicting drunk drivers and, that as a result, he/she is of the opinion that at the time of arrest you were intoxicated. 3
Fortunately, opinion testimony is like a nose, everybody has one. In DWI Offenses you can usually produce the bartender or waitress who served you to contest the police officer's opinion. Alternatively, you can produce the person who last saw you before your arrest or retrieved you from police headquarters so as to obtain his/her opinion as to your level of sobriety.
In summary, while most experienced trial lawyers in this area of the criminal justice system can mount a successful defense to the government's demeanor or opinion evidence, most of the shot and shell of this important battlefield must be pointed at the government's scientific tests and the BAC.

The Refusal Offense

(3 of 7)

The body of law that relates to a Refusal Offense begins with a statute that states, in essence, that when you receive a driver=s license in New Jersey, you impliedly consent to provide a breath test when a proper request is made by a law enforcement official. (Implied Consent Statute). The integrity of this so-called legal Afiction@ has confounded scholars for decades and, while we will have to leave discussions of the intellectual frailties associated with this fanciful proposition for another day, the law is clear: if a police officer makes a reasonable determination that you were driving a motor vehicle while under the influence of any intoxicant, you must submit to a breath test. No excuses and no exceptions.
Although the express language of the Implied Consent Statute requires the government to prove a Refusal Offense by a preponderance of evidence, which is the standard of proof used in civil cases, New Jersey's Supreme Court has concluded that, despite this legislative instruction, the standard of proof is "reasonable doubt,@ which is the standard in criminal cases.
In order for the government to prove a Refusal Offense, it must establish that: (A) there was probable cause to believe you were driving under the influence; (B) the operation of the vehicle took place on a public road or quasi-public area; (C) you were arrested; (D) you refused the breath test when requested by a police officer; and, (E) efforts to administer the test were consistent with the Implied Consent Statute, including the need to read to you well-delineated instructions as to the consequences of your refusal to provide a breath sample.
The most significant areas of contest in a Refusal Offense case are whether the government=s agent had probable cause to request the breath test or whether you refused that request. As to the former, it should be immediately recognized that probable cause is the lowest standard of proof known to the American Criminal Justice System. Historically, it has been defined to be something more than mere suspicion, but a lot less than reasonable doubt, which is the standard of proof required in all criminal prosecutions. It is rare occasion when a police officer can not prove probable cause to believe that you were operating a motor vehicle while under the influence of alcohol or drugs. Some of the cases have found probable cause where there is merely erratic driving, an odor of alcohol about the subject's breath and only one additional symptom of intoxication.
With respect to whether there was a refusal, case law 1 has said, time-and-time again, that your consent must be unqualified. You can be convicted of a Refusal Offense if you: (A) refuse to answer a police officer's request to take a breath test; (B) attempt to delay the administration of the test; (C) try to place a condition on your consent (i.e. yes, but first I=d like to talk to a lawyer); or (D) fail to provide a sufficient breath sample to allow the Breathalyzer to function properly.
Further, it is no defense that you were confused by the instructions or warnings given by the police officer. Indeed, in one case, a judge concluded that an arrestee, who spoke only Spanish, could not complain that the instructions given to him by the investigating police officer were defective because they were read to him only in English.
When you are charged with a Refusal Offense, you are almost certain to be charged with a DWI Offense. Your refusal to submit to a breath test will be used as evidence to convict you of the DWI Offense. If you are convicted of both offenses, your penalties will be consecutive, not concurrent, which means that if you are a first-time DWI offender and first-time Refusal offender where your BAC was in excess of .08%, but less than .10%, you may receive a minimum driver's license suspension term of 7-months for the DWI Offense and an additional minimum suspension of 7-months for the Refusal Offense, which will begin to run only after the first 7-month term of suspension under the DWI Offense has been completed.
The School Zone Offense (4 of 7)

A. The Offense
The so-called DWI School Zone Offense is not so much a separate offense under New Jersey's DWI statute, but rather a section of the statute that will allow the sentencing court to significantly enhance or increase your penalties. A violation under the School Zone section of the statute will occur if you are driving drunk where you are: (1) within 1000 feet of property used for Aschool purposes@ where the property is owned or leased to a school board, elementary school or secondary school; or, (2) driving through a school crossing that has been designated as such by ordinance or resolution; or, (3) driving through a school crossing that may not have been approved by ordinance or resolution, but where children are actually present.
As to the first two types of events, it is not necessary for the government to prove that you knew that you were passing through a school zone or a school crossing, nor is it relevant that school was not in session or that children were not present. Thus, you can be convicted of a DWI Offense in these two areas where the offense occurred in the middle of July at 3:00 a.m. on a Sunday and, as a result, you will receive the severe sentencing enhancements required by this provision of the statute. In short, the government has provided a 24-hour, seven-day-a-week safe-zone for children in a school zone.
If, however, the DWI Offense occurs in a school crossing that has not been approved by a local ordinance or resolution, which is the third provision under the statute, the government must prove that you Aknew@ that children were present when the offense occurred. The proofs associated with this issue may relate to the season, the day, the time, the neighborhood, the prominence of the school, signage, your familiarity with the neighborhood and a host of other factors.
B. The School Purpose Element
The statute that controls a DWI Offense in a school zone has significant similarities to the statute involving drug offenses in a school zone. Thus, in preparing a defense, the trial lawyer should be aware of principles of law developed in drug-related, school-zone cases, where the environment is even more hostile and a lot more aggressive.The lessons learned in those cases can be put to good use in analyzing and defending the issues in a DWI School Zone Offense case, especially the Aschool purpose@ component of the statute.

As to the facts needed to establish the Aschool purpose@ concept of a DWI School Zone Offense, it has been concluded in the context of a school-zone drug case, that once a site has been shown to be a school, it may be determined that it is used for school purposes because it is Aself-evident,@ and that is so, despite the fact that the court recognized that schools are sometimes closed or put to other uses. In other cases, the Aschool purpose@ issue may not be so evident. In one case, an athletic field owned by a town and used by the town's people for a number of non-school purposes, was determined to be Aschool zone@ property, where it was leased to a parochial school for its athletic events on discrete days and times. In addressing issues of this nature, the court suggested that the jury's analysis can be pointed to ADrug Free School Zone@ signs, other signs, flags or banners indicating school use; published schedules; newspaper articles, written lease agreements and the presence of uniformed children on the playing field.


C. The Distance Element
For the purpose of proving whether you were within 1000 feet of school property, the government may introduce into evidence an official map, which must have been approved by municipal ordinance or resolution and a kept on file in the municipality where the offense occurred. Once the map is properly authenticated and admitted into evidence, a court can presume that the site of the incident was, in fact, school property used for school purposes.
Even if a school-zone map is not produced, and that is an unlikely event, the government can show that the offense occurred within 1000 feet of school property by other means. In one case, a measuring tape was successfully used to establish the 1000-foot requirement, even though the tape's accuracy had not been certified by the State Division of Weights and Measures.
Finally, the owner or custodian of a motor vehicle can be found guilty of a DWI School Zone Offense if he/she knowingly permits someone who is under the influence to drive the vehicle.
Moreover, you can be convicted of a DWI School Zone Offense even if you are randomly stopped by police in a school zone. Thus, if a police officer follows your vehicle for some distance before he decides to pull you over, and the actual stop is within 1000 feet of a school property, you can be convicted of a DWI School Zone Offense.


Other Related DWI Offenses (5 of 7)

You can be convicted of a DWI offense if you allow an intoxicated person to operate your motor vehicle (Allowing Offense). If you are convicted of this offense, you will be sentenced to penalties similar to a DWI Offense conviction. The intellectual underpinning for this part of the Drunk Driving Statute is based on a public policy that finds no distinction between the serious risks created by drunk drivers and those who allow drunk drivers to operate a motor vehicle.
Apart from the basic similarities in sentencing options that exist between an Allowing Offense and a DWI Offense, the facts that the government must prove for each of the offenses are almost the same, including the opportunity to use the per se component of the statute. There are a couple of material additions to the government’s proofs, however.
First, you must consciously and knowing consent to the operation of the vehicle and provide the intoxicated person with an opportunity to drive the vehicle. Thus, if you are intoxicated and turn over your keys to your buddy who is also drunk, you can be convicted of an Allowing Offense even if you are later found asleep in the back seat of the vehicle.

Second, you must have actual and constructive knowledge that the operator was intoxicated at the time authorization to drive was given. Consequently, if you allowed your friend to borrow your car when he was sober, and he later became intoxicated, you could not be convicted of an Allowing Offense.
Third, you must own, control, or have custody of the vehicle operated by a drunk driver. Ownership of a vehicle is self-evident control. Ordinarily, the government can show control or custody of a vehicle by establishing some type of connection between you and the motor vehicle. For example, if your father allows you to drive the family car, and you later give the keys to your intoxicated friend, you can be convicted of an Allowing Offense.

B. DWI Offense With A Minor Present

If you operate a motor vehicle while intoxicated where the vehicle is occupied by a minor, in addition the to DWI offense, you may also be convicted of a disorderly persons offense if you are the parent or guardian of the child. Notably, a disorderly persons offense is criminal in nature, whereas a DWI Offense is a motor vehicle violation. As a disorderly persons offender, you may be sentenced to a period of incarceration for up to 6 months and fined up to $1,000. Moreover, if your level of intoxication is elevated, you may be charged with an indictable offense involving the endangerment of a minor. This offense can expose you to a term of imprisonment from 3 to 5 years.

C. Under-Age DWI Offense
If you are younger than 21 years of age and you decide to drive a motor vehicle while under the influence of alcohol or drugs, special rules apply. Unlike the adult counterpart of the DWI statute, which creates a presumption of intoxication with a