Brick, New Jersey Criminal Law Blog

The Appellate Division has recently reaffirmed a long-standing legal principle:  one may be convicted of driving while intoxicated (DWI) even in the absence of blood alcohol readings.  In State v. Salkewicz, the Appellate court upheld the defendant's conviction for DWI in Manchester Municipal Court despite the unavailability of Alcotest results, based upon the police officer's observations of her erratic driving as well as the sub-standard manner in which she performed the field sobriety tests at the site of the traffic stop.

The defendant was stopped in October 2008 in Manchester Township for repeatedly crossing the center line and driving erratically.  According to the officer, she failed the field sobiety tests, including the heal-to-toe and one- legged stand tests.  She was brought to the police station, submitted to the Alcotest, and produced blood alcohol results of 0.15 percent, almost twice the legal limit of 0.08.  At trial, her attorney objected to the admissibility of the blood alcohol results on the basis that the defendant was not continuously observed by the operator of the Alcotest for a minimum of 20 minutes prior to the administration of the test as required by State v. Chun, the Supreme Court's decision which upheld the scientific reliability of the Alcotest.  The municipal court allowed the readings into evidence, and the defendant appealed to Ocean County Superior Court.  The Superior Court remanded the case back to Manchester, holding that the municipal court should have considered whether defendant could have been convicted based upon observations taking into account certain medical issues raised by the defendant which made it difficult for her to perform the road-side tests.  On remand, the prosecutor stated he would proceed with the case without the blood alcohol results, and the municipal court nevertheless convicted the defendant based upon a review of a videotape of the stop.  The defendant again appealed, and her conviction was upheld by both the Superior Court in Ocean County and later the Appellate Division based on visual evidence.

The Appellate Court's decision in this case demonstrates unequivocally that one may still be convicted of DWI based upon visual observations, even where blood alcohol results are unavailable or have been suppressed by the court.  In most cases where the conviction is for a first DWI related offense, however, the loss of driving privileges will only be 90 days as opposed to 7 months since there are no blood alcohol readings for the court to consider.      

In State v. Bernokeits, the Appellate Division of the Superior Court of New Jersey upheld a lower court ruling that field sobriety testing requires only a reasonable, articulable suspicion of driving while intoxicated ("DWI"), not probable cause.

The defendant was stopped at approximately 3:30 a.m. on July 31, 2010 in Seaside Heights for illegal window tinting and loud exhaust.  He appeared nervous and had a strong odor of alcohol on his breath.  He admitted to having one beer, but the officer detected the odor of hard alcohol.  The officer requested the defendant step out of the vehicle for field sobriety testing, and he was subequently arrested and charged with DWI.

In Seaside Heights Municipal Court, the defendant argued there was insufficient probable cause to justify the field sobriety testing and moved to suppress evidence derived from the test.  The judge denied the motion, finding that the officer had a reasonable and articulable suspicion that the defendant was intoxicated.  The municipal court judge's ruling was upheld on appeal in Ocean County Superior Court, which was further upheld by the Appellate Division.  The Appellate Court held that DWI field testing requires no more that a reasonable suspicion on the part of the officer that the driver was intoxicated - not probable cause.  The results of field sobriety tests extablish probable cause for a DWI arrest.  Since field sobriety testing is routine and non-intrusive, no more than a reasonable articulable suspicion of intoxication is required for a police officer to request a driver to submit to such testing.

This is a significant case for DWI defense practitioners throughout New Jersey, especially here at the Jersey Shore, Monmouth and Ocean Counties.

Last year, the New Jersey Supreme Court ruled in State v. Marquez, 202 N.J. 485 (2010), that the police must warn drivers arrested on suspicion of driving while intoxicated (DWI) of the penalties for refusing to submit to chemical breath testing in a language they understand.   The State Assembly Law and Public Safety Committee recently voted in favor of a bill that would effectively overrule the Marquez decision. 

The refusal law, N.J.S.A. 39:4-50.4, provides that a person who refuses to submit to chemical breath testing faces a minimum 7 month loss of driving privileges for a first offense, 2 year loss of privileges for a second offense, and a 10 year revocation of driving privileges for a third or subsequent offense.  A person arrested for DWI must be apprised by the police as to the penalties for refusal in a formal written statement that is used throughout the state.  In the Marquez case, the defendant, arrested for DWI, claimed that he told the police he did not understand English, and therefore did not comprehend the penalties for refusal.  The Supreme Court voided the defendant's refusal conviction, holding that the penalties/warnings for refusal must be read to the individual in a language he/she speaks or understands.  

The bill recently passed by the Assembly Law and Public Safety Committee would render the Marquez decision moot, and amend the refusal law to provide that the penalty warning requirement is not an essential element of refusal, and that failure to receive the warning regarding the consequences for refusing is not a defense to a refusal charge.

The pending legislation is likely to engender a tremendous amount of opposition amoung criminal defense attorneys throughout the state, including attorneys in Ocean and Monmouth Counties who handle DWI defense, in that it runs contrary to all notions of due process and fundamental fairness.  This is legislation worth keeping an eye on.  Stay tuned. 

Many people do not realize that a prior, out-of-state conviction for DWI/DUI will enhance (i.e., make worse) a subsequent DWI conviction here in New Jersey.  Our Appellate Division of the State Superior Court recently re-affirmed this principle in State v. Zeikel.

In State v. Zeikel, the defendant had 3 previous drinking-and-driving related convictions: his first was in New York in 1981 for driving while ability impaired (DWAI); his second was also in New York in 1984 for DWAI and refusing to submit to a chemical test; and his third was in 1994 in Chatham, New Jersey, for DWI and refusal.  The offense giving rise to this appeal occurred in 2009 in Bedminster, New Jersey.  After pleading guilty to DWI in 2010, the Bedminster Municipal Court judge sentenced defendant as a third or subsequent offender, taking into account his New York convictions in the 1980s.  He was sentenced to 180 days in the county jail along with a 10 year suspension of his driving privileges, as well as the mandatory financial penalties.

On appeal, the Appellate Court concluded that the defendant was properly sentenced as a third or subsequent offender based upon his prior conviction in New Jersey for DWI, and his two prior convictions in New York for DWAI.  The Court held that the New York convictions were of a "substantially similar nature" to that of a DWI violation in New Jersey, which count as prior convictions under the New Jersey DWI statute, N.J.S.A. 39:4-50.  Despite various legal and constitutional arguments advanced by the defense to the contrary, the Court sent a loud and clear message that out of state convictions for "DWI-like" offenses will serve to enhance a subsequent DWI conviction in New Jersey, and result in greater penalties including significant jail time and loss of driving privileges.

The Zeikel decision reaffirms existing law and will continue to have legal significance throughout the State, including DWI prosecutions in Monmouth and Ocean Counties.