If You Have Been Arrested or Charged with a Crime or Disorderly Personís Offense, Call Vincent J. Sanzone, Jr., (Cell Phone 201-240-5716, Office 908-354-7006) you Owe it to Yourself and the People Who Care About You. Choosing the Right Attorney Will Be the Most Important Decision You will Make.
Recent DWI Court Results
February 3, 2014, Union Township Municipal Court, defendant charged with refusal and DWI the defendant facing minimum of 7-months loss of license for the refusal charge. Results: Dismissal of the refusal charge based on the confusion doctrine since patrol officer at scene orderd the defendant to submit to portable breath testing device which confused the defendant at headquarters as to his rights, since believing that he had already submitted to breath test. Only three months loss of license on the DWI charge.
May 20, 2013, Springfield Township Municipal Court, defendant charged with CDS (controlled dangerous substance in automobile), mandatory 2 year loss of license, and DUI, driving under the influence of drugs or narcotics. Results: All charges dismissed.
Driving While Intoxicated ( DWI/DUI)
According to a New York Times study, New Jersey has some of the toughest laws in the Nation. According to that same study, if a conviction is obtained New Jersey has some of the harshest penalties in the country. For example, unlike most states, like New York, New Jersey does not limited work driving licenses during the period of time of a DWI suspension. Under New Jersey Law, a motorist charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50, or in other states driving under the influence (DUI), a conviction can be obtained if the State proves beyond a reasonable doubt either the motorist had a blood alcohol reading of over .08 percent or exhibited behavior, usually through the police officer administering road side sobriety tests, that the motorist was driving under while impaired with alcohol or under the influence of drugs. Unlike most states, the New Jersey judiciary has eviscerated common defenses used in other states. Accordingly, New Jersey has the highest DWI conviction rates in the nation. New Jersey does not allow jury trials like most states. Further, New Jersey is the only state in the entire country that does not allow the defense of “extrapolation”. This defense allows the testimony of an expert witness, to calculate backward what the blood alcohol level was during the period of operation, as opposed to the time the test was administered. This is based on the scientific principal that it takes time for the alcohol in the stomach to get into the bloodstream. In spite of those hard facts, acquittals are sometimes obtained in Municipal Court, or through appeal, the Superior Court, or Appellate Division. Faced with this tough challenge Attorney Sanzone has obtained not guilty verdicts through a variety of methods, which include, filing suppress motions to suppress the motor vehicle stop as being without reasonable suspicion. Most acquittals, however, come from actual trials, in which the State is forced to present the testimony of the police officer. In those cases the prosecutor through the direct testimony of the police officer, must get into evidence all of the documents connected with the blood alcohol machine. Under the new Alcotest 71110 machine the State must introduce correctly 19 separate documents. In these types of cases this is where the experience of trial attorney comes into play, with trial skill, use of evidentiary objections and advocacy, to prevent those documents from coming into evidence, and increasing the chances of an acquittal.
In addition to foregoing there is an automatic minimum seven months loss of license for any motorist who refuses to submit to a breath test once properly arrested, with probable cause, for suspected DWI. Note, that same refusal does not apply to a motorist who is taken to the hospital for a blood test who can still legally refuse to submit to a blood test. Of course, if a court order is issued for the taking of the blood, than the refusal would be unlawful. With the new Alcotest 7110 machine the State must present the following. 1. The breath temperature must be measured and controlled by a breath temperature sensor. If the machine does not have a sensor, the final reading must be lowered by 6.58%. 2.If the defendant is a female over 60 years of age, her minimum volume breath rate into the machine should be 1.2 liters. 3. The tolerance range for all tests cannot exceed .005%, plus or minus. 4.The municipal court has discretion in admitting all of the machines records under the business records exception, provided however, that proper foundations are lied, including all of the foundational documents showing the machine was in proper working order. Results: The DWI charge is winnable. See my dicussion of a recent case in which a number of motions were used to have the entire case dimissed.
November 10, 2014, In State v. Minotti, Law Division, the court held that the mandatory enhanced penalties for DWI under 39:4-50(a)(3) and (a)(3) do not apply to prior underage DWI's under 39:4-50.14. Under that statute any person under the age of 21-years of age cannot have a blood alcohol level of anywhere between 0.01 and 0.08.
March 29, 2013
Speedy Trial Issues With DWI/DUI Cases In New Jersey
In State v. Downs the Appellate Court held that it was a violation of the defendant’s speedy trial rights were violated when the prosecutor failed provide the client discovery for 531-days, notwithstanding, the defendant did not pester the prosecutor for discovery during this period.
Likewise, in State v. Cahill, 213 N.J. 253 (2013), the appellate court held that a 16-month delay also violated the defendant’s speedy trial rights and the defendant did not have to show prejudice with the delay.
The seminal United States Supreme Court case on speedy trial issues is Barker v. Wingo, 407 U.S. 514 (1972), the two recent cases in New Jersey seem to be a departure from that case, since in Barker v. Wingo, the defendant had to show prejudice.
March 3, 2014, In State v. Tighe, the Appellate Division held that a prior drunk driving conviction will be used to enchance a subsequent refusual conviction. This is contrary to State v. Ciancaglini which ruled that a prior refusal conviction cannot enhance a subsequent DWI. Therefore, it might be wise to take the refusal conviction if the DWI will be dismissed.
May 10, 2013
The United State Supreme Court decided in the recent case Missouri v. McNelly, that as a general rule before a suspected DWI suspect can have his blood drawn to determine blood alchol levels the police must either obtain a judicial warrant or exigent circumstances. However, the court did leave a window of opportunity, to be decided on a case-by-case basis, that in the rare case because of exigency circumstances, that a judicial warrant or consent might not be necessary. Under existing law in New Jersey the police may take blood as long as it is not done forceably or against physical resistence. Although DWI blood prosecutions are not common, under this new case it might be prudent to file a motion to suppress the blood results. Also, note that consent of the defendant does not defeat the State's burden to prove exigency circumstances or judicial warrant.
May 9, 2013
The New Jersey Driving While Intoxicated Maze for Repeat Offenders; What is the Enhancement Penalties for Sentencing for A Prior DWI and/or Refusal Conviction.
There is little doubt that the penalties for a conviction while driving while intoxicated or refusing to take the breathalyzer test are some of the harshest in the nation.
The problem is compounded when the defendant has a prior DWI or refusal conviction.
As the law stands now which was articulated in the recent case State v. Korpita the appellate division affirmed a former municipal court judge’s sentence. In that case Mr. (“the belcher”) Korpita was charged and convicted of refusing to take the breathalyzer test and was sentenced as a repeat offender because of his prior driving while intoxicated. The appellate division in essence held:
1. A prior DWI + a subsequent Refusal = enhanced penalties as a second offender. State v. Korpita.
State v. Bergwall, 85 N.J. 382 (1981)
2. A prior Refusal + a subsequent DWI = non-enhanced penalty or 1st offender sentence. State v. Ciancaglini. However, repeated refusal convictions must run consecutive.
Because New Jersey’s Driving While Intoxicated laws are so complex, if you are charged with a DWI or Driving While Impaired Offense you must retained an experienced New Jersey DWI Attorney to protect your rights and obtain the best possible results for you based on the facts and law of your case.
March 16, 2013
The appellate court in the recent case State v. Gibson, that municipal court judges are not permitted to use any evidence i n any pretrial motions, such as motions to suppress, to convict the defendant at trial. This case affirms the law division case State v. Allan, 283 N.J. Super. 622 (Law Div. 1995) which held that evidence adduced at a suppress hearing cannot be used to convict a defendant and that the defendant has a right to start the trial as if the motion was never heard. Further, that the police officers are entitled to be cross-examined for the second time and that anything that they testified to at the suppress hearing can and should be used to impeach their credibility if their testimony is inconsistent. In the perfect setting the transcripts of the motion should be ordered (or at least the tape) prior to the start of the trial for this purpose. December 18, 2012
The New Jersey Supreme Court will decide whether prior Breath-Test Refusal conviction can enhance subsequent DWI, in State v. Frye. So far the appellate division cases have held that they can. One recent case is State v. Clapper.
January 19, 2012
The Appellate Division gave another crushing defeat to defendant's charged with a DWI in the recent case, State v. Mukherjee which held that the two-minute lockout period is automatic, because the machine is automatically programed not to begin the second test until the two-minute period has expired. Many DWI attorney's have attempted to use this argument through expert testimony with some or little success, however, now the issue is settled and that defense now has been flately rejected.
May 2, 2011, the Appellate Division in State v. Rehmann, held that in a blood-alcohol DWI prosecution that the State must produce for testimony the State’s laboratory technician who actually performed the blood-alcohol test and made the findings regarding the blood-alcohol level in the defendant’s blood. The practice of calling a surrogate witness, who reads or testifies to another person’s report at trial, who does not know anything about the actual test performed by another technician, does not satisfy the Confrontation Clause on the Sixth Amendment.
January, 2011, the New Jersey Supreme Court in State v. Ciancaglini, held tthat a prior refusal conviction does not count as a prior DWI for sentencing. The court held that a criminal statue of refusal (N.J.S.A. 39:4-50.4 is different than the DWI statute (N.J.S.A. 39:4-50, and hence, must be strictly construed.
State v. Maricic, the Appellate Division reversed a DWI conviction when the State failed to comply with the discovery requests of the defendant, which included the following: (1) Download Alcotest results from the subject matter instrument from the date of the last calibration until the defendant’s breath tests; (2) the calculation for the purported two breath sample results of defendant; (3) any repair logs or written documentation relating to repairs of the Alcotest device; and, (4) information regarding whether or when the fuel cell drift algorithm has been implemented since the subject matter Alcotest was last calibrated. In this case the Appellate Division remanded the matter back to the municipal court in order to provide the defense this discovery information, which is required under the seminal case State v. Chun.
July 19, 2010, the N.J. Supreme Court held in State v. Marquez, that a non-English speaking DWI suspect must be read the refusal warning in his or her native tongue. In this case the Court reversed the refusal to submit to the breath test because the defendant only understood Spanish and the refusal warning was read only in English. The Court however held that the burden of proving that the DWI suspect does not understand English rests with the defendant. July 12, 2010, the N.J. Superior Court Appellate Division held in State v. Federico, that driving while intoxicated is an absolute liability charge, whether voluntary or not, and that workplace chemicals, such as in this case, "limonene", is no defense and that Federico could not claim that limonene put him in a "neurotoxic state." The court likened this case to State v. Hammond, 118 N.J. 306 (1990), in which the defendant asked for juice at a party and was given instead alcohol instead as a practical joke. A small victory in this case however was the hold that for a third time offender the court could not exceed 180 in jail without a jury trial, pursuant to State v. Owens, 54 N.J. 153 (1969). July 1, 2010, the N.J. Superior Court Appellate Division held that when an insufficient Alcotest breath sample is taken by a suspected DWI motorist, that the officer administering the test must read to him the second part of the Standard Statement before the officer can issue a refusal charge. State v. Schmidt. January 15, 2010, New Jersey's acting-governor signed into law what is commonly known as "Ricci's Law" which requires the Municipal Court to impose mandatory ignition interlock device (NJSA 39:4-50.16) on the defendant's automobile if his/her blood alcohol was 0.15% or more, or if there was a refusal to submit to a breath test (NJSA 39:4-50.4a). Under a blood alcohol limit of under 0.15% the Judge must nevertheless suspend the defendant's automobile registration. In either event, as usual, the DWI laws in New Jersey are becoming more draconian and severe with each passing year. January, 2010, Supreme Court of New Jersey in State v. O'Brien, reverses conviction on the basis that trial judge acted as "second prosecutor." In that case the judge asked "friendly supportive" questions to the prosecutor's witnesses and hostile cross-examination to the defendant's witnesses. The Supreme Court held that the defendant is entitled to face a single adversary, the State. January, 2010, the Appellate Division in State v. Ciancaglini held that a prior refusal conviction counts as a prior DWI conviction for purposes of sentencing enhancement. In this case because the defendant had a 1979 DWI conviction and a 2006 Refusal conviction the court held that it was her second offense for purposes of sentencing and the defendant must forfeit her drivers license for a minimum of two years and not seven months as was the case in prior cases. December 22, 2008, the New Jersey Supreme Court, keeping with past tradition, made it more difficult for a defendant to succeed on a motion to suppress a motor vehicle stop based on the Fourth Amendment, when it decided State v. Amelio. In Amelio, the Justices held that a call to the police from the defendant’s minor daughter alerting them to her suspicion that her father was driving drunk constituted reasonable suspicion for the police to effectuate a motor vehicle stop of the defendant. The Court rejected the defendant’s argument that the daughter was a juvenile and had limited information as to whether the defendant was in fact driving drunk. Further, prior to the motor vehicle stop, there was no observations by the police officers of erratic driving. This opinion reversed the Appellate Divisions opinion which held the stop to be without sufficient probable cause.
March 15, 2009, a Superior Court Judge in Mercer County, in an unpublished opinion, ruled that as a foundational requirement for the admission of the Alcotest blood alcohol reading, the police officer administering the test must observe the defendant for a 20 minute period, before administering the test, to insure that the defendant did not burp or regurgitate, and the failure to of the officer to testify that he observed the defendant continuously for 20 minutes will exclude the admission of the Alcotest blood alcohol readings. This requirement which was articulted in State v. Chun, 194, N.J. 54 (2008) was not merly dicta but foundational evidence which must be proven by clear and convincing evidence. See, State v. Najorniak.
May 26, 2009, an Appellate Division panel in an unpublished opinion, State v. Putz, held that a driver found asleep behind the wheel of his automobile, with the engine running, and parking brake off, cannot be convicted of DWI, driving while intoxicated, unless the State can prove beyond a reasonable doubt that the defendant intended to drive the automobile in his intoxicated state. The Appellate Division in reversing the conviction held that the municipal court ignored credible evidence from the defendant that he had no intention to drive intoxicated. This decision is a departure from well established case law in New Jersey which held that a driver behind the wheel of an automobile, who was intoxicated, regardless of the surrounding circumstances, was sufficient evidence and proof of intent to operate the vehicle in an intoxicated state.
October 25, 2009, in State v. Filson, 409 N.J. Super. 246 (Law Div. 2009), held that any brake in the 20 minute observation period of the defendant by the police officer administering the alcotest would require the restarting of the observation of the defendant anew. Additionally, the burden was on the State and not the defendant to prove a 20 minute observation period.
November 16, 2009, the Appellate Division in State v. Eckert held that a plea to driving while intoxicated and refusal do not merge for purposes of sentencing, and that the municipal court must impose consecutive sentences. However, it is unclear whether the license suspensions can run concurrent, and it appears that the opinion still allows that option by the municipal court judge.
December, 2009, the Appellate Division in State v. Tsetsekas held that numerous adjournments based on the Troopers non-appearance and other discovery delays by the State violated the defendant's speedy trial rights required a reversal of the defendant's conviction and dismissal of the charges. The delays amounted to almost one year from the date of the arrest to municipal court conviction.
July, 2009, The United States Supreme Court in Melendez-Diaz v. Massachusetts held that under the seminal case Crawford vs. Washington, that the lab technician who analyzed the CDS must testify at trial, and that a lab report cannot be entered into evidence over the objection of defense counsel since it violates the hearsay rule. This ruling reaffirms well established New Jersey case law.
October 12, 2012. The Appellate Division in State v. O'Driscoll, reversed a DWI refusal conviction because the police read the old refusal warning statement which stated that the suspect would be facing 6 months loss of license as opposed to the 7 months loss of license. Specifically, the police officer read the January 2004 version as opposed to the updated April, 2004 version. Note, in all DWI cases the New Jersey defense attorney must check which version was read.
February 13, 2013, The Appellate Division held in State v. Gibson that the municipal court erred in using the testimony and evidence adduced at the motion to suppress hearing to find the defendant guilty at trial, when the state relied on the motion evidence to prove all the elements of the offense. This case is important because it requires a bifrication of all motion hearing with the underlying trial. Evidence adduced at those hearings cannot be used against the defendant at trial. The state must start from scratch with the trial. This of course gives the defense the opportunity to impeach the arresting officers with prior inconsistent testimony at trial.