new jersey drunk driving attorney

Implied Consent

July 24, 2015 by EMJanzekovich

Most people are aware that if they are stopped by law enforcement and there is reasonable suspicion that they are driving while intoxicated, the driver is required to provide a sample to determine if they are under the influence, but a sample of what? The law varies from state to state. For instance:

The Implied Consent Law in New Jersey is different than that of Rhode Island. In Rhode Island, Implied Consent means that any person who drives a motor vehicle in Rhode Island has given consent to Chemical Test (Breath-Blood-Urine – arresting officers choice apparently) to determine the amount of alcohol/drugs, if any, in your system after you have been arrested for suspected driving while intoxicated (DWI). Refusing to provide that sample is an additional charge carrying additional license suspensions and fines. (source – RI DMV website)

The New Jersey Implied Consent Law that states that all persons operating a motor vehicle on New Jersey roadways has agreed to submit to a Breath Test following an arrest for suspected drinking and driving. In addition to the original underlying penalties of the driving while intoxicated offense, failing to provide a breath sample will result in an additional charge carrying an additional period of suspension and other penalties.

However, New Jersey’s implied consent law does not currently mandate that you submit to a blood test or urine test. If taken to the hospital as a result of an investigation, such as an accident, you most likely did not perform standardized field sobriety tests. If you are suspected of being under the influence of an alcohol or drug, you will be asked for your consent to voluntarily provide a sample of your blood or urine to test. This is because although the breath test machine used in New Jersey, the Alcotest 7110c, is designed to be mobile and transportable to the scene or hospital, it is not the practice in New Jersey. So to gather evidence of intoxication to be used against you, your blood or urine will be required.

If you believe you have alcohol or drugs in your system, or if you just do not want to, you should refuse to voluntarily give consent for the collection of your blood or urine. If a DWI charge is to be pursued against you, a judge would have to issue a warrant (Fourth Amendment protections against unreasonable searches and seizures – barring exigent circumstances) for non-consensual blood testing to collect a sample. However, if a warrant is obtained, you are legally required to provide the type of sample described in the warrant and reasonable force may be used to collect that sample if necessary. Refusing to provide a sample after a warrant is issued will result in an additional charge(s) carrying additional license suspensions and penalties, which may also expose you to potential criminal charges.

So, according to the Rhode Island Division of Motor Vehicle website, a New Jersey resident on vacation, visiting a relative or just driving through Rhode Island that is stopped for a suspected DWI is required to submit to chemical testing. Chemical testing of your breath, blood or urine, without the need of a warrant, even though as a New Jersey license holder, your implied consent requirements are for only breath samples.

* Disclaimer – Edward Janzekovich is a licensed attorney in the State of New Jersey and not in Rhode Island. The information provided is to contrast implied consent laws between NJ and RI. Information is obtained directly from the Rhode Island DMV website and this is not to be interpreted as providing Rhode Island legal advice.

Drunk Driving Discovery

October 26, 2012 by EMJanzekovich

CRIMINAL LAW AND PROCEDURE — DISCOVERY — DRUNK DRIVING

14-2-8052 State v. Carrero, App. Div. (Sabatino, J.A.D.) (28 pp.) We review discovery orders separately issued in these two DWI cases authorizing defense counsel and/or defense experts to inspect and photograph rooms within the police stations where their respective clients provided breath samples on the Alcotest device in order to verify that the tests were properly administered. In Carrero, such access was granted to help ascertain whether devices emitting radio frequency interference (RFI) had been located in the station within 100 feet of the testing area. In Baluski, such access was granted to help ascertain whether the interior layout of the station physically prevented defendant from being observed for the required 20 minutes before testing. We reverse the discovery orders because neither defendant has shown a reasonable justification to conduct the requested inspection. We conclude that Carrero’s request is insufficient in light of the Supreme Court’s binding legal and evidentiary determination in State v. Chun, 194 N.J. 54, 89, cert. denied, 555 U.S. 825, 129 S.Ct. 158, 172 L.Ed.2d 41 (2008), that the Alcotest is designed in a manner that is “well shielded from the impact of any potential RFI,” and also in light of the state’s countervailing security interests disfavoring routine civilian access to the interior of a police station.

We conclude that Baluski’s request is likewise insufficient because he has presented no affirmative basis to believe that an officer failed to observe him for the 20 pretesting minutes required by Chun, 194 N.J. at 79, and also in light of the state’s countervailing security interests.

Source – NJSBA Daily Briefing

Filed Under: Criminal Law, Drunk Driving, DWI - DUI Tagged With: drinking and driving, dui attorney, dwi attorney, new jersey drunk driving attorney

AUTOMOBILES — DRUNK DRIVING — LICENSE SUSPENSION

October 25, 2012 by EMJanzekovich

05-2-8058 Foehner v. New Jersey Motor Vehicle Commission, App. Div. (per curiam) (5 pp.) Appellant Robert Foehner appeals from the Motor Vehicle Commission’s (MVC) denial of an administrative hearing before imposing a 3,650-day suspension of his driver’s license due to a fourth conviction for an alcohol-related offense. The MVC asserts that appellant was convicted of his first DUI on May 28, 1986, his second on November 2, 1990, his third on December 19, 1992, and the fourth on September 21, 2011. The first three offenses occurred in New Jersey; the fourth occurred in Arizona.

On appeal, appellant notes that the driving history provided with the notice of suspension contained only one prior alcohol-related motor vehicle offense dating back to December 19, 1992. He argues that, as a matter of procedural due process, he is entitled to an agency hearing to evaluate the legal and factual bases for the imposition of a 3,650-day suspension. The appellate panel disagrees and affirms the suspension. Appellant does not contest that he has been convicted of DUI on four occasions, nor does he raise any legal issues to be addressed by the MVC. Rather, appellant merely contends that the MVC did not provide him with proof of all four of his DUI convictions when it initially issued the suspension notice. Since no disputed issues of material fact existed, and no legal issues were raised, no evidentiary hearing was required before the mandatory suspension was imposed.

Source – NJSBA Daily Briefing

Filed Under: Criminal Law, Driver's License Suspension, Drunk Driving Tagged With: drinking and driving, drinking driving new jersey, driver's license suspension, drunk driving, dui attorney, dwi attorney, new jersey drunk driving attorney

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Implied Consent

Drunk Driving Discovery

CRIMINAL LAW AND PROCEDURE — DISCOVERY — DRUNK DRIVING

AUTOMOBILES — DRUNK DRIVING — LICENSE SUSPENSION