N.J. ALCOTEST BREATHALYZER RESULTS HELD INVALID

A recent opinion issued, by a New Jersey Superior Court Judge, gives defendants charged with driving under the influence of liquor in violation of N.J.S.A. 39:4-50 a valid DEFENSE. This opinion provides a breath of fresh air, in that, this opinion affords defendants charged with DWI some protections against unreasonable police or administrative abuses when obtaining breath test samples from an accused drunk driver.   On February 9, 2011 the Honorable Max A. Baker, J.S.C. of Superior Court of New Jersey, Atlantic County/Criminal Division presiding over the matter of State of New Jersey v. Emilio Rivera held that the only permissible tempature probe to be used with the new Alcotest breath test machine is the ERTCO-HART temp probe--anything else is unacceptable.

In State v. Rivera Judge Baker also indicated that the State has the burden of establishing that the mouth piece provided to the dwi defendant must be santized or established it's sanitastion AND the room in which the DWI breath test is adminstired should be free from any electronic devices.

This case is a win for defense counsels across New Jersey because it gives us some ammunition to challenge the test results of the Alcotest when a defendant may clearly be not guilty of DWI.

Anyone interested in a copy of the actual transcript of the decision please advise and I will provide a copy via email.

New Jersey DWI Sentencing akin to the CRIMINAL code?

Superior Court Judge Mitchel Ostrer wrote in State v Henry, approved for publication on February 9, 2011, that judges have too much latitude in sentencing DWI defendants, therefore, municipal judges should be guided by the guidlines used by judges in criminal cases, "Even if the factors are not mandated, they provide appropriate guides for the court's exercise of discretion," he added.



It should be pointed out Judge Ostrer's decision is contrary to, State v. Walsh, 236 N.J. Super. 151, which declined to apply the criminal code's aggravating-mitigating.

NEW JERSEY PROBABLE CAUSE TO STOP MOTORIST REVIEWED

In New Jersey a valid motor vehicle stop requires the following showing by the State:
In Deleware v. Prouse, the United States Supreme Court ruled that police must have at least an articulable and reasonable suspicion that a violation of the traffic laws has occurred. The articulable and reasonable standard has been further defined by the U.S. Supreme Court in Whren v. United States, the Court held a traffic stop is justified at its inception if the officer has probable cause to believe a traffic violation took place. This statement by the Court was made in the context of declaring that a motor vehicle stop constitutes a seizure within the meaning of the 4th Amendment. In determining whether the officer acted reasonably, due weight must be given not to the officer’s inchoate and/or unparticularized suspicion or "hunch." Terry v. Ohio, 392 U.S. 1, 4 (1968). 

NJ -REFUSING TO SUBMIT TO BREATH TEST IS NOT CONSIDERED A DWI

In a recent New Jersey Supreme Court opinion, the supreme Court rightfully held that a defendant's conviction for refusing to submit to a Breathalyzer test is not a "prior conviction" for purposes of determining the sentence for a subsequent driving-while-intoxicated conviction. See, State v. Ciancaglini

The practical affect of this decision is illustrated by the following example: In 2001 John Doe pleads guilty to refusing to submit to a breathalyzer. Thereafter, in 2002 John Doe pleads guilty to driving under the influence of alcohol in violation of NJSA 39:4-50. According to State v. Ciancaglini, for sentencing purposes Mr. Doe would be considered a first time offender of N.J.S.A. 39:4-50. Therefore, he is subject to a possible loss of his driver's license for 3 to 12 months.  As opposed to a mandatory two year new jersey driver's license loss as mandated for all second time offenders of NJSA 39:4-50 (that are otherwise ineligible for the 10 year step-down).  

ADDITIONAL DISCOVERY MATERIAL PROVIDED TO DWI DEFENDANTS

In State v. Maricic the New Jersey Appellate Division (unpublished decision) held that a defendant charged with DWI has the right to obtain, as part of discovery demands, a copy the repair logs and date download stored on the Alcotest instrument used for his test for the period ranging from the date of the last calibration until the date of the defendant's arrest. This is an important decision especially in light of the recent pending Supreme Court case filed by Ashton Thomas, Esq regarding the Alcotest apparent hardware defect in failing to provide a calibration system for breath samples given. 

In the State of New Jersey DWI cases are typically resolved in 60 days

My clients repeatedly ask the same question, "Why was I scheduled to appear in Court on the same day of my arrest for DWI or within days thereof." It should be noted that, some defendant motorists are arrested at 2:00 a.m. released by 4:00 a.m. and are scheduled to appear on that same day, namely at 9:00 a.m. The answer to the question is because New Jersey Municipal Court Judges are advised by their superiors to have all DWI cases resolved in 60 days! Thus, Judges want to advise all defendant's of their legal rights, including his/her right to counsel, as soon as possible. The Administrative Directive reflecting same reads as follows:

Directive on Statewide DWI Backlog Reduction
Directive #1-84 July 26, 1984
Issued by: Chief Justice Robert N. Wilentz
For the last several years, issues relating to driving while intoxicated have been
in the forefront of public attention in New Jersey and nationwide. The New Jersey
Legislature has enacted a number of bills to increase statutory minimum penalties, and
to provide financial support for increased enforcement and sanctions. The Executive
Branch has pursued programs of increased enforcement of these laws with vigor.
I recognize that a number of conditions, in addition to increased filings, have
combined to cause a backlog, including challenges to the reliability of breathalyzers.
However, our duty is to dispose of cases swiftly and fairly, within reasonable time
standards. We must and will meet that challenge.
The Supreme Court has, therefore, decided as a matter of policy that complaints
charging offenses under N.J.S.A. 39-4:50, Operation or Allowing Operation by Persons
Under the Influence of Liquor or Drugs and N.J.S.A. 39:4-50a. or [sic], Refusal to
Submit to Chemical Test, must be disposed of within 60 days of filing. This is consistent
with the standard suggested by all judges who attended the Annual Conference of
Municipal Court Judges in October 1983. It shall apply to all but exceptional cases.
However, I want to emphasize that DWI backlog reduction must not be pursued
at the expense of other court efforts especially the resolution of more serious disorderly
persons complaints. Therefore, special sessions may be needed in many courts.
I want to note that the 60 day standard for DWI cases, established in this
Directive, is a goal. Therefore, it does not replace the traditional guidelines established
through case law for dismissals based on lack of a speedy trial. You should now
consider and begin to implement management strategies designed to meet the 60 day
standard for new DWI cases. Techniques such as arraignment and scheduling soon
after complaint filing, expedited identification of defense counsel, pre-trial conferences
and scheduled trial dates within 45 days should be considered in this context.
I cannot overemphasize the importance of this effort. Elected officials of both the
legislative and executive branches of government have taken major steps to address
the DWI problem. It is incumbent on all segments of the judiciary to address this issue
with equal vigor. I would like to congratulate those courts that have succeeded in
keeping their DWI caseloads current. For those courts that have DWI backlogs,
immediate attention to this problem is crucial to New Jersey's statewide efforts to
effectively adjudicate DWI cases.

IN NEW JERSEY DOUBLE JEOPARDY PROTECTIONS APPLY TO GUILTY PLEAS ENTERED WITHOUT A TRIAL CONVICTION

In State v. Donal Hand, the New Jersey Appellate Court dismissed a DWI ticket and reckless driving charge  on double jeopardy grounds-- even though the defendant entered into a guilty plea to the Fourth Degree indictable offense as opposed to being found guilty of the charge by jury verdict or at the conclusion of a trial. Prior to this decision, there was some debate between the legal community if  the Constitutional protections of Double Jeopardy apply to defendants that voluntarily plead guilty to a charge but were not found guilty of the offense at time of trial (i.e. at the time at lease one witness is sworn in to testify).


THE NEW JERSEY APPELLATE DIVISION OPINION READS AS FOLLOWS:

STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DONALD R. HAND,
Defendant-Respondent.
_________________________________
Argued September 29, 2010 - Decided
Before Judges Fisher, Sapp-Peterson and
Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Cape May County,
Municipal Appeal No. 28-12-09.
J. Vincent Molitor, Assistant Prosecutor,
argued the cause for appellant (Robert L.
Taylor, Cape May County Prosecutor,
attorney; Mr. Molitor, of counsel and on the
brief).
Respondent has not filed a brief.
The opinion of the court was delivered by
SAPP-PETERSON, J.A.D.
In this appeal by the State, we determine whether a guilty
plea to fourth-degree creating a risk of widespread injury or
death, N.J.S.A. 2C:17-2(c), precluded defendant's subsequent
prosecution in municipal court for certain motor vehicle
APPROVED FOR PUBLICATION
November 29, 2010
APPELLATE DIVISION
November 29, 2010
2 A-3901-09T3
offenses. Defendant moved before the municipal court to dismiss
the motor vehicle charges on double jeopardy grounds. The
municipal judge denied the motion. On appeal de novo to the Law
Division, Judge Kyran Connor granted the motion, vacating the
guilty pleas and dismissing the complaint on double jeopardy
grounds. We affirm.
The underlying facts supporting the indictment occurred on
December 18, 2007, when police received a report of a motorist
operating his vehicle on a hockey rink at Mulligan Field in
Lower Township. Defendant's vehicle nearly struck a group of
children. His vehicle collided with several objects, including
a concrete barrier, a tree, and two trash receptacles. When the
vehicle finally stopped, approximately fifteen men restrained
defendant until police arrived. The arresting officer detected
a strong odor of alcohol on defendant's breath and observed that
defendant's eyes were droopy and watery. Defendant was
belligerent both at the scene and later at a local hospital
where he was transported for treatment. The Lower Township
Police issued summonses to defendant for driving under the
influence (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A.
39:4-96; and failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f).
A complaint was also issued for driving a motor vehicle in a
recreational area, in violation of Lower Township Ordinance No.
3 A-3901-09T3
475-1(E)(1). Laboratory tests performed by the State Police
revealed that defendant's blood alcohol content was .237.
On January 29, 2008, a grand jury indicted defendant on a
single count of fourth-degree creating a risk of widespread
injury or death. The indictment read in pertinent part:
DONALD R. HAND, on or about December 18,
2007, in the Township of Lower, County of
Cape May, and within the jurisdiction of
this Court, recklessly did create a risk of
widespread injury or damage, by operating a
motor vehicle in an intoxicated state on a
populated athletic field; contrary to . . .
N.J.S.A. 2C:17-2(c)[.]
On April 17, 2008, defendant, who was represented by
counsel, appeared in Superior Court. His attorney advised the
court that defendant would plead guilty to the indictment and
that in exchange, the State would recommend a 365-day prison
term. In response to this representation, the prosecutor
advised the court:
Judge, that is an accurate representation of
our agreement. I expect the factual basis,
Judge, with regard to this matter . . .
would include . . . defendant acknowledging
that while highly intoxicated[,] he operated
his motor vehicle in an area which was
populated by young kids, a recreational
area, out off the street onto the grass
area[,] placing many of the people there in
risk of injury.
The court thereafter personally questioned defendant under
oath, and defendant admitted that he had consumed a pint of
4 A-3901-09T3
vodka at a home located near the athletic field. He told the
court that he did not know "how [he] got the keys" and did not
remember the events, but accepted the accounts of others
regarding his behavior. He was subsequently sentenced in
accordance with the plea agreement.
The State remanded the traffic summonses to municipal
court for disposition. On November 24, 2009, defendant appeared
before the Lower Township Municipal Court with counsel. At that
time, the prosecutor reported to the court that there "might
possibly be a joint motion" to dismiss the DWI charge because
she "sort of concur[red] with [defense counsel]'s arguments
regarding double jeopardy[.]" The judge disagreed and denied
defendant's motion to dismiss the charges. Six days later,
defendant pled guilty to the DWI and reckless driving offenses.
Noting that this was defendant's seventh DWI conviction, the
judge sentenced him to six months incarceration, a ten-year loss
of his driving privileges, along with appropriate fines and
penalties.
Defendant appealed the conviction to the Law Division,
challenging the denial of his motion to dismiss. Judge Connor,
citing the "same evidence" test set forth in State v. DeLuca,
108 N.J. 98, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L.
Ed. 2d 358 (1987), reasoned that "defendant's driving while
5 A-3901-09T3
intoxicated was already effectively adjudicated on April 17th,
2008," when defendant pled guilty to the indictable matter. The
judge explained further:
[T]o recap just briefly, I am taking into
account very specifically the facts of this
case where, first of all, the indictment
itself seemed to find its focus on
intoxicated driving as the only
specification of reckless behavior. And
also I focus on . . . the prosecutor's . . .
articulation that he expected the factual
basis to focus on . . . defendant operating
his motor vehicle "while highly
intoxicated." There was also, in my
framework of thinking, something I had
really adverted to directly before, and that
is that the judge[,] at the pre[-]hearing[,]
specifically asked . . . defendant to
confirm that he operated his motor vehicle .
. . "in an intoxicated state of mind on the
occasion in question."
The judge vacated defendant’s guilty pleas to reckless
driving and DWI and then dismissed the charges. In order to
preserve the State's right to appeal, the judge treated the
matter as a motion to dismiss pursuant to Rule 3:28(d), based
upon double jeopardy grounds, rather than an acquittal on both
charges. The State's appeal followed.1
The State raises two points for our consideration:
1 The State has not appealed the dismissal of the reckless
driving charge.
6 A-3901-09T3
POINT I
THE SAME EVIDENCE TEST SHOULD NOT APPLY TO
GUILTY PLEAS.
POINT II
THERE IS NO VIOLATION OF THE PROHIBITION
AGAINST DOUBLE JEOPARDY.
The double jeopardy clause of the Fifth Amendment to the
United States Constitution provides: "Nor shall any person be
subject for the same offense to be twice put in jeopardy of life
or limb." The clause is made applicable to the states through
the due process clause of the Fourteenth Amendment. Our State
Constitution, article I, paragraph 11, contains a parallel
provision, which provides: "No person shall, after acquittal,
be tried for the same offense." See DeLuca, supra, 108 N.J. at
101-02. Although the language of the New Jersey Constitution
references "acquittal," our Supreme Court has "consistently
interpreted the state constitutional double jeopardy protection
as co-extensive with the guarantee of the federal Constitution."
Id. at 102 (citing State v. Dively, 92 N.J. 573, 578 (1983);
State v. Barnes, 84 N.J. 362, 370 (1980); State v.
Rechtschaffer, 70 N.J. 395, 404 (1976); State v. Wolf, 46 N.J.
301, 303 (1966)). Hence, the double jeopardy clause affords
protection in three contexts: (1) "[it] 'protects against a
second prosecution for the same offense after acquittal'"; (2)
7 A-3901-09T3
"'[i]t protects against a second prosecution for the same
offense after conviction'"; and (3) "'it protects against
multiple punishments for the same offense.'" DeLuca, supra, 108
N.J. at 102 (quoting North Carolina v. Pearce, 395 U.S. 711,
717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969)
(footnotes omitted)). The latter two categories are implicated
here.
As the Court discussed in DeLuca, the double jeopardy
analysis involves consideration of two prongs: (1) the "same
offense" test, which focuses upon the statutory elements of a
crime rather than proofs proffered for conviction; or (2),
alternatively, the "same evidence" test, which focuses upon
whether the same evidence used to prove the first offense is
necessary to prove the second offense. DeLuca, supra, 108 N.J.
107 (agreeing with the Appellate Division panel in State v.
DeLuca, 208 N.J. Super. 422, 434 (App. Div. 1986), that the
Supreme Court in Illinois v. Vitale, 447 U.S. 410, 420-21, 100
S. Ct. 2260, 2267, 65 L. Ed. 2d 228, 238 (1980), intended the
second prong to be an alternative to the first prong).
The statutory elements for creating a risk of widespread
injury are: (1) recklessness; and (2) creation of a risk of
widespread injury or damage. N.J.S.A. 2C:17-2(c); see also
Model Jury Charges (Criminal), "Recklessly Risking Widespread
8 A-3901-09T3
Injury or Damage" (2005). Proof of DWI requires: (1) operation
of a motor vehicle; and (2) operation while under the influence
of alcohol or an intoxicant. See N.J.S.A. 39:4-50(a); see also
State v. Eckert, 410 N.J. Super. 389, 402 (App. Div. 2009).
Because different statutory elements are required to prove each
offense, there is no dispute that the first prong analysis does
not apply to the present matter. Therefore, it is only the
second prong or "same evidence" test that is pertinent here.
The State argues that the "same evidence" test should not
be applied to guilty pleas. Relying upon In re Seelig, 180 N.J.
234 (2004), State v. Colon, 374 N.J. Super. 199 (App. Div.
2005), and State v. Capak, 271 N.J. Super. 397 (App. Div.),
certif. denied, 137 N.J. 164 (1994), the State contends the
prohibition against double jeopardy "was not created to enable a
defendant to, by entering a guilty plea to one offense, avoid
punishment for the remainder of his misdeeds." Rather, it
maintains that the "same evidence" test focuses upon "the actual
evidence to be presented at trial." Colon, supra, 374 N.J.
Super. at 214. The State asserts that had defendant proceeded
to trial, in addition to evidence that defendant operated his
motor vehicle under the influence, it would have introduced
additional facts to establish that defendant created a risk of
widespread injury or death. Specifically, it would have
9 A-3901-09T3
introduced evidence that (1) defendant operated his vehicle on
an athletic field while adults and children were present; and
(2) defendant's vehicle nearly struck several people on the
baseball field, hockey rink, and near the concession stands.
The State urges this evidence would have been sufficient to
prove that defendant recklessly created a risk of widespread
injury or death, irrespective of whether he operated his motor
vehicle while under the influence of alcohol.
We agree that if presented, such proofs could sustain a
conviction for the offense, but what could have occurred is not
the test. Rather, it is only what in fact occurred that informs
our analysis and decision here. As the Law Division noted, in
both the indictment and at the time defendant pled guilty to the
indictment, it was defendant's operation of the motor vehicle
under the influence that formed the "essential facts
constituting the crime charged" in the indictment and
defendant's subsequent guilty plea. R. 3:7-3(a). ("The
indictment . . . shall be a written statement of the essential
facts constituting the crime charged."). His guilty plea
"leading to a judgment of conviction has the force of an
admission of guilt on the charge based on [his] sworn factual
statement[.]" State, Dep't of Law & Pub. Safety v. Gonzalez,
142 N.J. 618, 630 (1995). "It is unthinkable that the
10 A-3901-09T3
Legislature would intend that judgments of conviction should be
treated differently depending on whether they resulted from
guilty pleas or trials." Ibid. We therefore reject the narrow
interpretation advanced by the State that the "same evidence"
test should only apply to trials.
Vitale, supra, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d
228, involved a guilty plea. There, the defendant had
previously pled guilty to failure to slow to avoid an accident.
The Supreme Court held that the defendant's subsequent
prosecution for manslaughter would be barred if the defendant's
failure to slow to avoid an accident was the reckless act upon
which the prosecution would rely to prove the manslaughter. Id.
at 421, 100 S. Ct. at 2267, 65 L. Ed. 2d at 238.
Likewise, in the present matter, defendant's operation of
his motor vehicle under the influence was expressly included as
part of the underlying facts constituting the offense as set
forth in the indictment. Further, the State required, as part
of defendant's plea to the indictment, that he acknowledge
operation of his motor vehicle under the influence. Thus, as in
Vitale, defendant's subsequent prosecution for DWI would be
barred because proof that defendant operated his motor vehicle
under the influence required the same proofs that the State
relied upon to establish the greater offense. Vitale, supra,
11 A-3901-09T3
447 U.S. at 421, 100 S. Ct. at 2267, 65 L. Ed. 2d at 238;
DeLuca, supra, 108 N.J. at 107-09; Dively, supra, 92 N.J. at
581-82.
The State's reliance upon In re Seelig, Colon, and Capak is
misplaced. In re Seelig involved the acceptance of guilty pleas
in municipal court from a defendant involved in a motor vehicle
accident resulting in the death of two people. In accepting the
pleas, the judge failed to comply with Administrative Directive
#10-82, "Action on Cases Involving Possible Indictable Offenses"
(May 3, 1983), a directive issued by the Administrative Director
of the Courts following our Supreme Court's decision in Dively.
In re Seelig, supra, 108 N.J. at 240. The directive required
municipal judges or clerks to notify the county prosecutor of
motor vehicle accidents involving death or serious injury in
order to afford prosecutors an opportunity to determine whether
indictable offenses are involved, and if a decision is made to
present the matter before a grand jury, staying municipal court
proceedings unless and until further notice from the county
prosecutor. Directive #10-82. Substantial defects in the
municipal court judge's acceptance of the guilty plea ultimately
resulted in an order vacating the guilty pleas. In re Seelig,
supra, 180 N.J. at 256-57. The instant matter does not involve
non-compliance with any administrative directive, nor is there
12 A-3901-09T3
any evidence of substantial defects in the Law Division judge's
acceptance of the guilty plea.
The language the State quotes in its brief from Colon,
supra, 374 N.J. Super. at 214, that the "same evidence" test
focuses upon "the actual evidence to be presented at trial[,]"
refers to our discussion of the double jeopardy clause in the
context of the "same elements" test adopted in Blockburger v.
United States, 284 U.S. 299, 303-04, 52 S. Ct. 180, 181-82, 76
L. Ed. 306, 309 (1932) and reaffirmed in United States v. Dixon,
509 U.S. 688, 703-12, 113 S. Ct. 2849, 2859-64, 125 L. Ed. 2d
556, 572-78 (1993). Although the State argued in Colon that in
light of Dixon, only the "same elements" test applied to a
double jeopardy analysis, we rejected this more restrictive
approach:
As an intermediate appellate court, we are
therefore confronted with the difficult
determination of whether to adhere to the
Court's existing interpretation of federal
and state double jeopardy protections, set
forth in [State v.] Yoskowitz[, 116 N.J. 679
(1989);] DeLuca and Dively, or, without
significant precedent to suggest that the
Court would narrow or restrict the
flexibility of its view of double jeopardy
to accord with newly-established federal
constitutional law, to forecast that it
would do so in a state constitutional
context. We find the latter course to be
presumptuous, and, accordingly, follow Capak
in holding that such a determination must be
made by the Supreme Court, not by us. We
accordingly view defendant's proofs in light
13 A-3901-09T3
of the "same conduct" test in determining
whether state constitutional proscriptions
against double jeopardy have been violated.
[Colon, supra, 374 N.J. Super. at 216.]
Finally, in Capak, supra, the conduct at issue in the
indictable matter was different from that implicated in the
disorderly persons offenses that had been resolved in municipal
court. 271 N.J. Super. at 401. The non-indictable offense
dealt with a theft from the defendant's employer and
"encompassed the means by which [the] defendant obtained the
prescription pad, but the indictable prosecution related to her
subsequent use of the pad in an illegal manner," namely, in the
"defendant's endeavor to obtain [a controlled dangerous
substance]." Ibid. Consequently, we concluded that the case
dealt with "isolated events, not a single event which was the
subject of multiple prosecutions" as was the situation in
Vitale, supra, and Grady v. Corbin, 495 U.S. 508, 110 S. Ct.
2084, 109 L. Ed. 2d 548 (1990). Id. at 402.
In short, although here there were alternative facts that
could have been proffered and accepted in order to establish a
factual basis for defendant’s plea to the indictment, the State
elected to limit the "underlying facts constituting the offense"
to the DWI. It is therefore precluded from separately
prosecuting defendant for DWI. DeLuca, supra, 108 N.J. at 102.
14 A-3901-09T3
Affirmed.