New Jersey Criminal Attorney Blog

The conviction of a Spanish-speaking driver who refused a Breathalyzer test was overturned because police did not advise him of the consequences of his refusal in a language he could understand.

The New Jersey Supreme Court ruled this week in State v. Marquez that police must provide the warning in a language the driver can understand in order to satisfy the statutory requirement that police inform drivers of the penalties they face for refusal to submit to a test.

As a result of the ruling, the Attorney General's Office is reportedly preparing translations that police may use to administer the standard statement in various languages.

The statement that police are required to give is part of New Jersey's implied consent law and refusal law. The implied consent law deems all motorists to have consented to providing breath samples. The refusal law authorizes the state to revoke a motorist's license for refusing to submit to such a test.

There is only one breathalyzer that police administer to New Jersey Drivers suspected of DWI: The Alcotest 7110 MKIII-C. But a report released today by the Seton Hall University School of Law's Center for Policy and Research raises concerns about the test.

The report, entitled "The Untestable Drunk Driving Test" concludes that "there are serious reasons to doubt the accuracy and reliability of the test..." The report also points out that the Alcotest cannot be independently evaluated because of the State's contract with its manufacturer, which prohibits anyone else from purchasing a unit, and because of the manufacturer's proprietary rights to the Alcotest, which prevent anyone from determining how it works. An analytic chemist for Seton Hall attempted to obtain the test, but the manufacturer, Texas-based Draeger Safety Diagnostics, refused to provide one.

The New Jersey State Supreme Court considered the accuracy and reliability of the Alcotest in State v. Chun, which was decided in 2008. In examining the issue, the Court referred to the report of a special master. Although the special master was not permitted to analyze the software used in the Alcotest, the software was submitted to two independent software houses that provided their own reports. The special master determined that the test was reliable, and the Supreme Court approved of the Alcotest.

It remains to be seen whether the Seton Hall Report will have any affect on the use of the Alcotest breathalyzer. As the report indicates, State v. Chun resolved many complex legal questions surrounding the test. However, it also suggests that other jurisdictions may come to different conclusions, and states that "the New Jersey Supreme Court cannot be the last word on the constitutionality of its foreclosure of individual defendants' challenge to the Alcotest in general or to the particular device used to measure their blood alcohol concentration."

Franklin Lakes police arrested former Mets and Yankees pitcher Dwight Gooden for driving under the influence, child endangerment, and other charges on Tuesday after he was involved in an accident while driving his son to school.

Gooden allegedly struck a car in front of him, prompting a call to police. Authorities later stopped Gooden, who was driving a half mile from the scene of the accident. According to police, Gooden's 5-year-old son was not wearing a seat belt, and had bumped his head on the seat in front of him.

Although the story is noteworthy because of Gooden's celebrity, it is also worth noting that a DWI stop can often result in related charges that could complicate a defendant's case. In addition to DWI, Gooden was charged with being under the influence of a controlled dangerous substance, endangering the welfare of a child, DWI with a child passenger, leaving the scene of a motor vehicle accident, and other charges.

Further complicating Gooden's case is his history of DWI convictions. In 2005 he was sentenced to probation for speeding from police while under the influence of a controlled substance. As a repeat offender, he could be subject to more severe penalties than a first offender would face.

Making sense of the range of penalties and understanding the possible defenses to multiple charges may seem daunting, but talking with an attorney can help put the possible consequences into perspective.

An appellate panel affirmed the conviction of a DWI defendant who refused to take a breathalyzer test, even though the defendant asserted that he did not know enough English to understand the police officer's pre-test statement. It was not enough to assert a lack of understanding, the Appellate Division ruled in an opinion released yesterday. Rather, evidence must be introduced to show the defendant's lack of understanding.

In State v. Kim, the Court held that "[t]he mere allegation that defendant did not have sufficient comprehension of the English language to knowingly refuse to submit breath samples does not place a material issue in dispute to require an evidentiary hearing. . . let alone void the basis for his conviction."

At times, as the police officer spoke during the stop in question, the defendant stated that he did not understand what was being said. However, the Appellate Division found that the defendant understood English, and was even familiar with his rights, including the right to an attorney and the right to decline to make a statement.

The opinion makes it clear that any question about a defendant's ability to understand the police officer's statements must be raised in a motion, and evidence of the defendant's ability to understand must be offered to the court. It is not enough merely to assert that the defendant failed to understand the officer.

The opinion also underscores the importance of identifying all issues and raising them in a timely manner so that the court has an opportunity to develop the evidence on the record. Failure to do so could mean the difference between conviction and acquittal.

The penalties in New Jersey for driving under the influence of alcohol or drugs depends on a number of factors, including whether the violation was a first, second or third offense, whether the violation took place in a school zone, and what the state contends the driver's blood alcohol content was at the time of the stop.

In addition to considering each of those factors, the Court has a range of sentencing options that includes a loss of driving privileges, fines, community service, classes provided by an intoxicated driver resource center, and possible imprisonment. Insurance surcharges are also applied.

In more severe cases, the Prosecutor may seek charges that bring even greater consequences. A man was convicted last week in Superior Court in Morristown of aggravated manslaughter after he struck and killed two teenagers while driving under the influence. He faces 60 years in prison -- the maximum possible sentence.

Understanding how the circumstances of a case affects the range of penalties is essential when considering how to defend against a DWI charge.

In an opinion released yesterday, the New Jersey Appellate Division ruled that a DWI defendant who was previously convicted of refusing a breathalyzer test requires sentencing as a repeat offender.

The case, State v. Ciancaglini, involved a Monmouth County woman who was previously convicted of DWI in 1979, and of failing to submit to a breathalyzer test in 2006. She was again convicted of DWI in 2008.

The municipal court sentenced her as a third-time offender to six months in jail, a $1,006 fine, ten-year loss of license and vehicle registration, 12 hours at an Intoxicated Driver Resource Center, and other fees.

On appeal, the Law Division held that she should have been sentenced as a first time offender because the 1979 conviction occurred more than ten years ago and the conviction for refusal to take a breathalyzer test did not qualify as a prior conviction for DWI. The Law Division sentenced her as a first time offender to 30 days in jail, a $500 fine, 12 months license revocation, and 12 hours at an Intoxicated Driver Resource Center.

The Appellate Division disagreed and reinstated the original sentence.

Preliminary reports indicated that on Thursday and Friday there were ten drunk driving arrests throughout Bergen, Passaic and Morris Counties, and no drunk driving fatalities.

Among those arrested were a Cliffside Park man who police said crashed into another car stopped at a traffic signal on Route 17 in Rutherford. The driver of the car that was hit suffered no injuries.

Other DWI arrests took place in Teaneck, Passaic, Fairview and Secaucus. And just after midnight on New Year's Day, Clifton police arrested a Lodi woman who struck another car on the Garden State Parkway. Two people suffered non-life threatening injuries in that accident.

An Appellate panel ruled that a police officer who monitors a DWI suspect for 20 minutes prior to an Alcotest does not have to be the same officer who then administers the test, overturning a lower court ruling and making it easier for prosecutors to convict DWI defendants.

An officer must monitor a driver suspected of DWI prior to administering the breath test as a way to guard against inaccurate results. The New Jersey Supreme Court mandated that specific procedures be followed in administering the test in its 2008 ruling in State v. Chun. Today's ruling said that the 20-minute period required by State v. Chun was meant to make sure a defendant did not do anything that could affect the test results. However, the requirement should not be read so literally as to unduly restrict the state from using the test to prosecute DWI cases.

The ruling came out of a Morris County case in which Joel Ugrovics was arrested for DWI. He blew above the legal limit for blood alcohol content and pleaded guilty in Riverdale Municipal Court, but later appealed to Superior Court which overturned the conviction. The Appellate Division reinstated the guilty plea and remanded to the lower court.

An intensive effort by law enforcement throughout New Jersey to find drunk drivers resulted in police issuing hundreds of other summonses for things like speeding and seatbelt violations throughout Bergen and Passaic counties.

While the campaign resulted in 137 drunk driving arrests in Bergen County and 95 drunk driving arrests in Passaic County, it also produced 1,973 speeding tickets in Bergen county and 374 tickets for seatbelt violations in Passaic County.

The State Division of Highway Traffic Safety funded the crackdown, paying for law enforcement overtime during a two-week period ending on September 7.

A drunk driving conviction could result in fines, license suspension, and even imprisonment. While speeding tickets are a less serious offense, they could have important consequences. Depending on how fast a driver is traveling, speeding tickets can result in a penalty of between two and five points. A driver who accumulates 12 to 15 points in two years is subject to a 30 day license suspension.

There is a lot of misinformation concerning the consequences of refusing a breathalyzer test, but the law in New Jersey is clear: you must take the test or face stiff penalties.

On a first offense, refusing a test can result in license suspension for 7 months to a year, up to a $500 fine and 12 hours in an Intoxicated Driver Resource Center Program. To convict someone of refusing the breathalyzer test, the State needs only to show that the arresting officer had probable cause to believe the defendant operated the vehicle while intoxicated. However, it is possible to be found guilty of refusing the test even if a defendant is acquitted of driving while intoxicated.

In fact, just recently a Hoboken police officer was charged with refusing a breathalyzer test, adding to his legal troubles that include a DWI charge.

Whether you have a New Jersey driver's license and you receive a traffic ticket out of state, or you live elsewhere and get pulled over for a violation while driving through North Jersey, it's important to understand how out-of-state violations affect the number of points on your license.

Almost all states belong to the Driver License Compact, an agreement among member states to share information on traffic violations. However, each state establishes its own rules that determine whether it will assess points for minor out-of-state traffic violations.

For example, if you hold a New York driver's license and receive a minor traffic violation in New Jersey, no points will be assessed to your New York license. It's important to remember that such violations still could result in costly fines, so consider all of the factors before deciding whether to plead guilty to a traffic offense.

On the other hand, a New Jersey driver who is deemed guilty of a minor point violation in New York will typically see two points assessed to his or her New Jersey license. A New Jersey driver who accumulates points could have to pay surcharges, and a New Jersey driver who receives 12 to 15 points in two years could have his or her license suspended for 30 days.

The rules are different for more serious offenses such as DUI charges. An out-of-state driver who is convicted of such charges in New Jersey could be in danger of having his or her home state license suspended. Such rules depend on the state and the type of violation. For example, a New York driver 21 years or older who is convicted in New Jersey of an alcohol related offense could have his or her license suspended for 90 days. If the conviction is for a drug related offense, the suspension is six months.

An out of state driver who receives a summons in New Jersey and wants to plead not guilty may not have to appear in court to address the charges, depending on the circumstances. In some cases, a local attorney may be able to represent a driver at a court hearing without the driver being present.

With news that a California judge agreed to expunge Mel Gibson's infamous arrest from his record, it's worth noting that he would not have been so lucky had he been before a New Jersey court.

DWI convictions - or any motor vehicle violations for that matter - are specifically excluded from New Jersey's statute on expungement. Such convictions remain on your record permanently, which is why it is so essential to have good representation in the event of a DWI arrest.

However, expungement is available for other offenses. In New Jersey Courts, an expungement involves scrubbing a person's record of "detection, arrest, detention, trial or disposition of an offense within the criminal justice system." The goal is to allow a one-time offender to move forward with his or her life.

Not everyone is eligible for an expungement. The following criteria must be met:

• you have no other prior or subsequent arrests


• you have not been convicted of a disorderly or petty disorderly persons offense on more than two occasions.


• you have not been convicted of more serious crimes including murder, manslaughter, rape, arson, perjury, and certain drug offenses, among others

The law also requires a waiting period before a petition for expungement may be granted. The clock begins running from the conviction, payment of a fine, or completion of parole or incarceration, whichever is later. That time period is ten years for most crimes, five years for disorderly persons offenses, two years for violations of a municipal ordinance, and one year for drug possession offenses where the offender was 21 years old or younger and possessed 25 grams or less of marijuana or 5 grams or less of hashish.

The process for seeking expungement involves petitioning the court involves filing a petition with the Superior Court in the county where the offense occurred.

An odd story came out of North Carolina this morning where a 51-year-old man was charged with DWI after police caught him riding his bicycle while intoxicated. But don't expect to see any similar stories out of New Jersey, where the DWI laws are not so broadly applied.

Contrary to what may be the case in other parts of the country, New Jersey's DWI law does not apply to bicyclists. But, to state the obvious, the practice could still result in trouble.

New Jersey's DWI statute specifically applies to motor vehicles. The statute defines a motor vehicle as "all vehicles propelled otherwise than by muscular power. . ." Clearly that would exclude bicyclists. Yet in 1988 a Montgomery Township municipal court judge convicted a man of DWI for bicycling while drunk. The defendant appealed and in State v. Machuzak, a Somerset County judge threw out the conviction. In reversing the conviction, the judge wrote that it was "abundantly clear" that the statute was "not intended to apply to non-motorized pedal-type bicycles."

It may seem obvious, but it's worth stating: common sense dictates that bicycling while drunk is never a good idea. In addition to risking personal injury, it could result in other related charges such as disorderly conduct. And getting drunk in public often leads to other far more serious offenses like assault.