Randolph H. Wolf Challenges Warrantless Blood Draw in DWI Case

January 24, 2014 · Posted in Blog, DWI / DUI Blog 

Randolph H. Wolf was recently retained to represent a client who had been involved in motor vehicle accident and was subsequently charged with DWI.  The police escorted the injured client to the hospital where a blood test was taken which indicated that the client was intoxicated at the time of the accident.  Randolph H. Wolf recently filed a motion in the municipal court, seeking to suppress the blood test results on the basis that they were improperly obtained without a valid warrant and without the consent of the defendant.

The United States Supreme Court first considered the Fourth Amendment restrictions on blood tests in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), where a blood sample was drawn from a defendant suspected of driving while under the influence of alcohol.  Noting that search warrants are ordinarily required for searches of homes, the Court reasoned that absent an emergency, no less should be required where intrusions into the human body are concerned, even when the search was conducted following a lawful arrest.  Thus, absent emergency circumstances (or “exigent circumstances”), a warrant will typically be required for blood tests.  Read More »

Driving Under the Influence with a Minor Passenger

December 9, 2013 · Posted in Blog, DWI / DUI Blog 

In New Jersey, those who are charged with driving under the influence with a minor in the vehicle can face penalties in addition to the standard DWI penalties. For example, a South Jersey woman was recently arrested after she drove a school bus with 25 children on board. The defendant had a blood alcohol content of 0.25% — three times the legal limit of 0.08%. The woman was charged with 25 counts of driving under the influence with a minor, 25 counts of endangering the welfare of a child, driving under the influence on school property, and disorderly conduct. Read More »

The Ignition Interlock Requirement for Out of State Drivers

July 19, 2013 · Posted in Blog, DWI / DUI Blog, Out-of-State Drivers Blog 

The ignition interlock requirement, which went into effect in January 2010, is a relatively recent development under New Jersey DWI law.  Under the new law, first-time DWI offenders whose blood alcohol content (“BAC”) is 0.15% or higher must install the interlock device in their vehicle.  Moreover, those individuals convicted of a subsequent DWI – regardless of their BAC – are required to install the interlock device.

Often times, our DWI clients are licensed in a state other than New Jersey.  One of the questions that arise in these cases is whether or not the individual is required to install the ignition interlock device on their vehicle.  In an article entitled “Ignition Interlock Device FAQs,” the New Jersey Motor Vehicle Commission has stated the following on this topic:   Read More »

Conditional Licenses for New York Licensed Drivers Convicted of DUI in New Jersey

July 15, 2013 · Posted in Blog, DWI / DUI Blog, License / Insurance Blog 

Often times, the Law Office of Randolph H. Wolf represents individuals who are convicted of driving under the influence (“DUI”) in New Jersey but who are licensed in another state.  While New Jersey will not permit conditional driving privileges under any circumstances, it may be possible for those individuals who are licensed in New York to receive a conditional license from the New York DMV.

Pursuant to New York State VTL §1196 (7), an individual that is convicted of DUI in another state may be issued a conditional license, provided they participate in what is known as the Drunk Driver Program (also known as DDP).  The DDP is a 16-hour educational and rehabilitative program.  To enroll in the DDP, an out-of-state DUI applicant must first wait until the New York DMV enters proof of the out-of-state DUI conviction in their system.  The NY DMV will then mail the individual an Order of Suspension or Revocation along with information regarding enrolling in the DDP.  Applicants are generally eligible to participate in the DDP as long as they have not been convicted of DUI in the last five years.  The program, however, is not available for those convicted of a refusal.   Read More »

More States Outlawing DWI Checkpoints

July 8, 2013 · Posted in Blog, DWI / DUI Blog 

In Michigan v. Sitz, the U.S. Supreme Court upheld as constitutional sobriety checkpoints.  In that case, the Court noted that, although stopping drivers at DUI checkpoints without probable cause was technically a violation of the Fourth Amendment, it is only a small intrusion, and one that is outweighed by the interest in ensuring safety on the roadways.  In Sitz, the U.S. Supreme Court asked the Michigan Supreme court to reconsider its decision reversing the DUI conviction on the ground that a roadblock violated the Fourth Amendment.  Upon remand, however, the Michigan Supreme Court, however, upheld its prior decision on the grounds that if DUI roadblocks do not violate the U.S. Constitution, they violated the Michigan constitution.  Nine other states have joined Michigan in banning sobriety checkpoints based off of their own constitutions. Read More »

Are Breathalyzer Results Affected by How You Breathe Into the Alcotest?

June 17, 2013 · Posted in Blog, DWI / DUI Blog 

Breath machines are commonly used to determine the guilt of innocence in drunk driving cases. A number of scientific studies, however, have confirmed that breath tests results may vary depending on the breathing pattern of the person being tested, highlighting just another example of the unreliability of breath machines.

In one study, for example, a group of men drank moderate doses of alcohol and their blood-alcohol levels were then measured by gas chromatographic analysis of their breath. The breathing techniques were then varied.  The results indicated that holding your breath for 30 seconds before exhaling increased the blood-alcohol concentration (BAC) by 15.7%. Hyperventilating for 20 seconds immediately before the analyses of breath, on the other hand, decreased the blood-alcohol level by 10.6%. Keeping the mouth closed for five minutes and using shallow nasal breathing resulted in increasing the BAC by 7.3%, and testing after a slow, 20-second exhalation increased levels by 2%. Read More »

Are Field Sobriety Tests Designed to be Failed?

June 10, 2013 · Posted in Blog, DWI / DUI Blog 

Police officers commonly use roadside standard field sobriety tests (“SFSTs”) in DWI investigations to determine whether a driver is under the influence of alcohol.  These tests usually consist of a series of three to five tests, such as the heel-to-toe, one-leg stand, horizontal gaze nystagmus (following a pencil with your eyes), finger-to-nose, alphabet recitation, the Rohmberg balance test (eyes-closed, modified position-of-attention), and so on.

These DWI tests have an aura of scientific credibility to juries. Unfortunately, however, they have no real basis in science.  The conditions under which the field sobriety tests are taken almost guarantee failure.  The instructions are long and complicated and the tests are usually given late at night, along a graveled or sloped roadside, with bright headlights from passing cars to a person who is nervous, frightened, and completely unfamiliar with the tests. Read More »

When is a Refusal Not a Refusal?

June 3, 2013 · Posted in Blog, DWI / DUI Blog 

When a DWI suspect is arrested, they are asked to submit to blood, breath, or urine tests. If the suspect refuses, they can be convicted of refusing the chemical test in addition to DWI.  For a first offense refusal, penalties include a license suspension for seven months to one year.  Additionally, the fact of refusing can be used as evidence of “consciousness of guilt” in trial — a practice which has been held by the U.S. Supreme Court not to be a violation of the Fifth Amendment right against self-incrimination.

The reason for the harsher treatment is, of course, to encourage suspects to provide evidence considerably more reliable than an officer’s opinion.  It is the evidence that is desired, more than a desire to punish for not cooperating.  It would follow then, of course, that if a suspect changes his mind and agrees to provide a blood, breath, or urine sample — or what is referred to as “curing” the refusal — there would be no penalties.  Wrong.  At least in New Jersey as well as most other states.  A summary of the situation was presented by a New Jersey appellate court in State v. Corrado, where the defendant had initially refused to take a breath test until he could speak with his attorney.  The court held that the initial refusal is final and hence that there is no right to “cure” an initial refusal. The case essentially turned on the question of the unreasonableness of having police officers turn aside from other duties to administer a test after the driver has initially refused. Read More »

NTSB Recommends Lowering Legal Blood-Alcohol Content from 0.08 % to 0.05 %

May 27, 2013 · Posted in Blog, DWI / DUI Blog 

All 50 states currently have set their legal limit for drunk driving at 0.08%, reflecting the percentage of alcohol, by volume, in the blood.  If a driver is found to have a BAC level of .08% or above, he or she is subject to arrest and prosecution for driving under the influence (“DUI”).  The National Transportation Safety Board (“NTSB”), however,  recently recommended lowering the legal BAC level from the current 0.08% to 0.05 %.   In support of its position, the NTSB points out that a person’s visual acuity begins to be affected at round 0.05% alcohol in the bloodstream.  At 0.05% BAC, some drivers begin having difficulties with depth perception and other visual functions.  At 0.07%, according to the NTSB, cognitive abilities become impaired.  Further, according to the NTSB, at 0.05% BAC, the risk of having an accident increases by 39%. At 0.08% BAC, the risk of having an accident increases by more than 100%.

The 0.05% legal limit has support in other counties around the globe.  While the U.S. and Canada both set their current legal limit at 0.08%, most European countries, as well as many South American nations and Australia use 0.05% BAC as their legal limit for drunk driving.  Indeed, when Australia dropped its BAC level from 0.08% to 0.05%, provinces reported a 5%-18% drop in traffic fatalities.  The NTSB similarly believes that if all 50 states changed their standard to 0.05%, nearly 1,000 lives could be saved each year.  Opponents of the recommendation argue, among other things, that the recommendation criminalizes social drinking and will overwhelm the criminal justice system.  This proposed law would certainly be a drastic change to the New Jersey DUI laws already set in place. Only time will tell if this law will be pushed through.

Ignition Interlock Device: Penalties for Non-Compliance

March 25, 2013 · Posted in Blog, DWI / DUI Blog 

On January 14, 2010, New Jersey amended its drunk driving laws to require municipal court judges to order the installation of an ignition interlock device (IID) in certain DWI matters. The IID requires your breath sample before the engine will start. If the IID detects alcohol on your breath, the engine will not start. As you drive, you are periodically required to provide breath samples to ensure the continued absence of alcohol in your system.  Under the amended law, judges must order the installation of the ignition interlock device in the following situations:

  • First time DWI convictions where the defendant’s blood alcohol concentration (BAC) is 0.15% or higher;
  • Second and all subsequent DWI convictions;
  • Refusal convictions; and
  • DWI School Zone convictions.

The interlock ignition device must be installed on one’s car during the entire license suspension period plus the court-ordered period thereafter. Failure to comply with this requirement may result in the Motor Vehicle Commission refusing to restore the individual’s driving privileges.  Read More »

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