| Outline by Kenneth
Vercammen
First offender penalties increased P.L. 2003, CHAPTER 314
Previously, a person who drives with a blood alcohol concentration
(BAC) of 0.10% or higher is considered guilty of drunk driving. The
New Law, effective January 20, 2004, reduces the BAC that constitutes
drunk driving to 0.08%. The basis for this reduction was that the federal
government has statutorily mandated that each state establish driving
with a BAC of 0.08% or higher as its per se drunk driving offense. Any
state that fails to pass such a law will lose a percentage of its federal
highway funding.
Under the Law's provisions, if the offender's BAC is 0.08% or higher
but less than 0.10%, or if the offender operates a motor vehicle under
the influence of intoxicating liquor, or if the offender permits another
person under the influence of intoxicating liquor or with a BAC of 0.08%
to 0.10% to operate a motor vehicle, the fine imposed would be $250
to $400 and the license suspension would be for three months.
If the offender's BAC is 0.10% or higher, or if the offender operates
a motor vehicle while under the influence of narcotic, hallucinogenic
or habit-producing drug, or the offender permits another person who
is under the influence of narcotic, hallucinogenic or habit-producing
drug to operate a motor vehicle, or permits another person with a BAC
of 0.10% or higher to operate a motor vehicle, the fine imposed would
be $300 to $500 and the license suspension would be for not less than
seven months or more than one year. This means a first time offender
with a BAC of only .10 faces a minimum 7 month license suspension, increased
from 6 months.
The bill also brings the law imposing penalties on underage persons
who operate motor vehicles after consuming alcohol into conformity with
the new 0.08% standard.
Third offender mandatory jail P.L. 2003, CHAPTER 315, approved January
20, 2004
The new law requires persons convicted of a third or subsequent drunk
driving offense to be sentenced to a mandatory 180-day term of imprisonment
in a county jail or workhouse, but provides that the court may reduce
the term of imprisonment for each day, up to a total of 90 days, that
the person participates in an alcohol inpatient rehabilitation program
approved by the Intoxicated Driver Resource Center (IDRC).
Under the new law, at least 90 days would have to be served in jail
without exception. Drunk drivers who are required to serve the mandatory
term of imprisonment are ineligible to participate in a work release
program. Under a work release program, qualified prisoners may be employed
outside the jail, but when not working, they must be confined to the
jail.
Under old law, persons convicted of a third or subsequent offense of
drunk driving are subject to 180 days imprisonment, except that the
court may reduce this term by up to 90 days for each day served performing
community service. Furthermore, these offenders may not be required
to serve their term of imprisonment in the county jail or workhouse,
but may serve such imprisonment in an inpatient rehabilitation program.
New REFUSAL Law- Persons who refuse to submit to a test lose their
driver's license for seven months to one year for a first offense. Sentence
can be concurrent or consecutive.
The NJ State Bar Association Board of Trustees voted to Oppose this
legislation, based upon the recommendation of the Municipal Court Section,
Chaired by Kenneth Vercammen.
Previously, persons who commit a first offense of refusing to submit
to a breathalyzer test after being arrested for drunk driving lose their
license for six months. This bill would increase this period of license
suspension to seven months to one year so that a first time offender
would receive the same penalties that a drunk driver with a BAC of 0.10%
receives.
The bill also amends the refusal statute to specify that the period
of license suspension imposed for a first offense of refusing to submit
to a breathalyzer test may be concurrent or consecutive to a license
suspension imposed for a drunk driving offense arising out of the same
incident. The bill also clarifies the language concerning consecutive
license suspensions for second or subsequent refusal convictions and
convictions for drunk driving.
The bill revises the penalties imposed for refusing to submit to a breathalyzer
test when that offense occurs in a school zone.
In order to promote uniform enforcement of the drunk driving and the
refusal statutes, the bill requires the Attorney General to promulgate
guidelines concerning the prosecution of violations of those statutes.
The guidelines are to be disseminated to county and municipal prosecutors
within 120 days of the bill's effective date.
RECENT MAJOR DWI CASES IN MUNICIPAL COURTS
SELECTED BY KENNETH VERCAMMEN
Is the mere technicality by officer failing to sign ticket a defense
to DWI? Yes
1. Failure to Sign Summons Requires Dismissal of DWI. State v. Fisher
363 NJ Super. 108 (App. Div. 2003). R. 7:2-1(b)(2) requires a summons
to be signed by "a law enforcement officer or the judge, municipal
court administrator or deputy court administrator of the court having
territorial jurisdiction." Absent a police officer's or court officer's
signature, the summons lacks an attestation of probable cause and must
be dismissed. Decided September 18, 2003
Now- 90 day statute of limitations for DWI issuance.
2. School zone 2nd offense penalty even if 1st offense non school zone
State v. Reiner cite- 363 N.J. Super. 167 (App. Div 2003)
The issue raised by this appeal is the permissible sentence for an individual
convicted of a second driving while intoxicated offense, N.J.S.A. 39:4-50,
when the second offense occurs within a school zone as defined by N.J.S.A.
49:4-50(g), but the first DWI offense did not. Specifically, the question
is whether the Law Division erred in sentencing defendant under subsection
(g) as a second offender because it was not his second school-zone DWI
offense. Subsection (g) essentially doubles the penalties provided under
subsection (a) for a DWI conviction when the offense occurs in a school
zone (including a school crossing). We held that defendant was properly
sentenced under the enhanced penalty provisions of subsection (g) because
he was a second DWI offender whose second offense was committed in a
school zone. Judge Fuentes dissented.
The NJ Supreme Court on January 29, 2004 ORDERED that the petition for
certification is granted, limited solely to the issue of whether defendant
received sufficient notice of the state¹s intent to prove a violation
of N.J.S.A. 39:4-50(g). The Court will consider this issue as a part
of defendant¹s pending appeal pursuant to Rule 2:2-1(a)(2) (A-45-03).]
3. Nurse Certificate Admissible in DWI Even Though No Notary. State
v. DeFrank 362 NJ Super. 1 (App. Div. 2003).
Defendant was convicted of driving while intoxicated. At trial, a certificate
signed by the nurse who drew a sample of his blood for alcohol-content
analysis was admitted into evidence pursuant to N.J.S.A. 2A:62-11. The
certificate contained a certification that met all the requirements
of R. 1:4-4(b). Defendant argued that the certificate should not have
been admitted into evidence because nurse¹s signature was not notarized
by a notary public as required by N.J.S.A. 2A:62-11. The court held
that the fact that the certificate was not signed in the presence of
a notary public does not in any way diminish the legal obligation of
its signatory to tell the truth nor prevent the criminal prosecution
of those who make false statements therein. In this context, the underlying
purpose for the procedural requirements in N.J.S.A. 2A:62-11 were satisfied.
The certificate was properly admitted as evidence that defendant¹s
blood was drawn by a medical professional, in a medically acceptable
manner.
4. 911 Call May Permit MV Stop. State v. Golotta 178 N.J. 205 (2003).
NJ Supreme Court reverses Appellate Division and holds the stop of the
defendant¹s vehicle based on a 911 call describing a motor vehicle
that was being driven erratically was valid under the U.S. Constitution
and the New Jersey Constitution in light of the significant risk of
death or serious injury to the public and to the vehicle¹s driver.
5. Unsolicited Statement By Drunk Admissible Even if No Miranda. State
v Cryan 363 NJ Super. 442 (App. Div. 2003).
Unsolicited statements made by defendant while in police custody and
without the benefit of Miranda warnings were properly admitted into
evidence because they were not the product of police interrogation or
its functional equivalent.
6. Police Can Hold DWI Defendant Until Relative or Friend Arrives.
State v. Greeley 178 NJ 38 (2003).
The police department¹s policy of refusing to release an intoxicated
person except to the care of a relative or friend does not impermissibly
encroach on that person¹s statutory right to an independent test
of his or her blood alcohol level. Reading the statute in conjunction
with N.J.S.A. 59:5-6, respecting release by the police of intoxicated
persons, compels the conclusion that the Legislature did not intend
to confer an absolute right of release upon DWI arrestees. N.J.S.A.
59:5-6 provides immunity to police officers for injuries sustained by
a driver arrested on DWI charges subsequent to release, but only if
the person is released ³in a position of relative safety and refuge.²
Reading the two statutes together, the Court finds that the Legislature
has manifested an overarching concern regarding the release of intoxicated
persons and has chosen to limit the circumstances in which police properly
may release such persons. The policy of releasing an intoxicated DWI
arrestee only to a responsible friend or relative provides a reasonable
opportunity to secure an independent BAC test. If an arrestee fails
in an attempt to arrange for an escort by a friend or relative, police
do not violate his rights by detaining him until he becomes sober enough
to no longer present a danger to himself or others.
The new "John's Law" permits a municipality to enact an ordinance
permitting police to hold a DWI defendant in a jail cell, even if a
family member is waiting in the police station to pick up the driver.
This would prevent a driver from exercising his rights to an independent
test.
7. Can a person drive drunk to escape from getting beaten?
Sometimes- Defense of Necessity Permitted In DWI Case. State v. Romano
355 NJ Super. 21 (App. Div. 2002)
The common-law defense of necessity is available to a defendant charged
with driving while intoxicated, where defendant was attacked and beaten
by several men, sustained severe injuries, and where his car was shaken,
kicked, and rocked, and his attackers threatened to kill him. Defendant
had no realistic alternative but to violate the DWI statute to escape
a brutal and potentially deadly attack.
The trial judge erred in perceiving defendant's defense as duress rather
than necessity and improperly shifted the burden of proof to defendant.
Defendant must come forward with some evidence of the defense, but the
state bears the ultimate responsibility to disprove the defense beyond
a reasonable doubt. Defendant's DWI conviction is reversed.
8. State v Sohl _ NJ Super. __ (App. Div. decided November 6, 2003 A4055-02)
The original course completion date does not have to be set forth on
the replica in order for it to be admissible as proof of the trooper-operator's
certification as a qualified breathalyzer operator.
9 Police could follow drunk into garage
State v. Nikola 358 NJ Super. 573 (App. Div 2003)
A police officer who has temporarily detained a motorist outside her
garage, based on probable cause to believe she has been driving while
under the influence of alcohol, may follow the motorist into her garage
while she retrieves her driving credentials and then arrest her without
a warrant.
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