Reisig Criminal Defense & DWI Law, LLC

DUI Defense For Every County In The State Of New Jersey

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NJ DWI Defense

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If I Am Convicted of DWI in NJ, Will I Have To Get The Interlock Device?

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The ignition interlock device is governed by N.J.S.A. 39:4-50.17. This statute was amended on January 14, 2010. This amendment markedly changed the sentence provisions for the ignition interlock device.

An individual convicted of a first offense may be sentenced to the ignition interlock device by the sentencing judge. Such a first offender whose blood alcohol concentration on either the Alcotest or through a blood test result which is .15% or greater is required to install the ignition interlock device.

All second, third, and subsequent offenders of DWI are required to install the ignition interlock device pursuant to the January 14, 2010 amendment to the ignition interlock provision.

Pursuant to the January 14, 2010 amendment to the ignition interlock provision, all individuals convicted of refusal are required to install the ignition interlock device. This was a major change in the law. Prior to the January 14, 2010 amendment, individuals convicted of refusal were not subject to the imposition of the interlock device. As stated, all refusal convictions now subject to the ignition interlock device.

Finally, an individual subject to the imposition of the ignition interlock device cannot operate any motor vehicle that is not so equipped. If an individual does not own, lease, or principally operate a motor vehicle, he or she cannot drive any other vehicle no so equipped. Indeed, an individual subject to the ignition interlock device who operates a motor vehicle which is not so equipped will be charged with a disorderly persons offense. Therefore, it would be a criminal offense to so operate a motor vehicle not equipped with an ignition interlock device for those individuals who are subject to this provision.

If you have been arrested for DWI, give us a call at 732-625-9660.

In 2009, I Was Charged With DWI and Refusal to Provide Breath Samples In New Jersey….

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I pled guilty to Refusal and the DWI charge was dropped. I was recently arrested for DWI. What effect, if any, will my prior refusal conviction have if I am convicted of the current DWI charge?

There will be no effect on the pending DWI charge based on the prior refusal conviction. In New Jersey, a prior refusal conviction can never serve to enhance or impact a second or third DWI arrest. The definitive case concerning this supposition is State v. Ciancaglini, 204 N.J. 597 (2011).

If you need assistance with a DWI Arrest anywhere in New Jersey, give us a call at (732) 625-9660.

Less than six months ago,I was convicted of DWI in Municipal Court In NJ….

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What is the difference between appealing my conviction and filing a Post Conviction Relief Petition? I was told I must appeal the conviction first.

There are major differences between appealing a DWI conviction from municipal court and filing a petition for post-conviction relief (PCR) pertaining to said conviction.

There is no requirement to filing a municipal appeal for a DWI conviction. A failure to file a municipal appeal does not bar an individual from subsequently filing a PCR petition. However, an individual who appeals his DWI conviction must exhaust all of his appellate remedies before filing a PCR.

Municipal appeals in New Jersey are governed by R.3:23. It must be filed within 20 days from the date of conviction. Another term for a municipal appeal is trial de novo. In essence, a municipal appeal of a DWI conviction (or any municipal court conviction) is where a case is decided anew based on the record in the trial court below.

In nearly all cases, there is no additional testimony in a municipal appeal. Rather, a transcript of the municipal court proceedings is provided to a Superior Court Judge in Criminal Part for review. A briefing schedule is set forth by the Superior Court judge in which the defendant files a brief, or written legal argument, in support of the municipal appeal.

The county prosecutor’s officer in the county wherein the municipal court conviction occurred then submits its own brief, or written legal argument, in opposition to the defendant. During the municipal appeal itself, the Court hears oral argument from the defense and the county prosecutor’s office, respectively. Then the Superior Court judge renders his decision.

The Superior Court judge is required to give due deference to the municipal court judge regarding the credibility of the witnesses who testified below. Not one deference is provided to the municipal court judge’s findings below. In all respects, the Superior Court judge decides the case “anew” on the transcript of the trial proceedings, the written legal arguments, and the oral argument provided during the trial de novo.

All factual and legal issues present in the record in the municipal court are available to a defendant. This is a marked distinction from an Appellate Division appeal in which only legal arguments can be presented.

A PCR in New Jersey is equivalent to a federal Habea Corpus petition. It is only available after the Defendant has exhausted his appellate remedies or if the Defendant did not pursue appellate remedies. However, a PCR cannot be predicated upon any issues that could have reasonably been raise on appellate review by a defendant.

A PCR petition from a municipal court conviction is governed by New Jersey Court Rule 7:10-2. It must be filed within 5 years of the date of the municipal court conviction or upon excusable neglect by the defendant. It is nearly impossible to file a timely PCR based upon excusable neglect by a defendant.

Therefore, it is imperative that a PCR petition be filed within the 5 year statute of limitations. PCR practice is very specialized. My Law Office has been on the cutting edge of filing PCR petitions for over 15 years. PCR petitions emanating from DWI convictions generally come in two varieties. The first is where the municipal court fails to properly accept a guilty plea and advise of the consequences of said plea which implicates constitutional notions of due process.

A PCR based on this theory can only be filed after first obtaining the transcript(s) of the guilty plea. These types of PCRs provided fertile ground for a defendant. The other type of PCR for a DWI conviction from a municipal court is where the defendant alleges ineffective assistance of counsel on the part of his trial counsel. This can be done in the context of a guilty plea or after a trial. This is a very particularized type of petition. If an individual has multiple convictions for DWI, they should consult with an experienced DWI attorney to determine if their prior convictions can be vacated by virtue of a PCR petition.

If you need assistance with appealing a conviction for DWI in New Jersey or filing a post conviction relief petition, contact attorney Matthew Reisig at (732) 625-9660.

I was charged with a DWI For Drugs In NJ Because of Blood Test Results After An Accident…

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Does the recent U.S. Supreme Court decision Missouri v. McNeely apply in my case?

This question is confusing in that an individual taken to a hospital pursuant to a DWI arrest is most often in the context of a motor vehicle accident. In those circumstances, the theory of intoxication is almost always alcohol. In those situations, Missouri v. McNeely has direct consequence since the blood sample obtained from the individual charged with DWI will not be admissible absent a search warrant obtained by the law enforcement officer prior to the blood sample being provided. In New Jersey, there is no current procedure to obtain such search warrants before the blood sample is withdrawn. This has created a major problem for law enforcement in trying to prosecute such individuals for a blood withdrawal DWI.

However, this question presents a different scenario where the theory of intoxication is drugs rather than alcohol. As stated, these individuals would most often be subjected to a urine sample at the request of law enforcement at a given police department or State Police barracks. It is my opinion as a leading DWI defense attorney that such urine samples would also be subject to a search warrant requirement pursuant to Missouri v. McNeely.

In answering the literal question presented, which concerns a blood sample taken at a hospital to determine the presence of a controlled dangerous substance, this unusual circumstance would also require a search warrant pursuant to Missouri v. McNeely. The bottom line in all of the foregoing fact patters is that a search warrant would be required in order for the blood sample or urine sample to be admissible against the individual charged with DWI.

It should be noted that the drug intoxication DWI is the hardest to prove in New Jersey. By definition, it is the easiest type of DWI case to defend. Whenever the theory of DWI is sought to be proved by a blood or urine sample, law enforcement is now required to obtain a search warrant before the bodily specimen is obtained. To reiterate the prior point of emphasis, New Jersey has not yet developed procedures for obtaining search warrants before the request for the blood sample is obtained.

Is There a Difference in NJ Between DWI and DUI?

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There is no difference in New Jersey between DWI and DUI. Our DWI statute is entitled Driving while intoxicated.

The first sentence of the statute makes it illegal to operate a motor vehicle ‘while under the influence’. Therefore, both terms are used interchangeably in New Jersey.

If you have been arrested anywhere in New Jersey for DWI and need assistance, and need the very best, give Reisig & Associates a call at 732-625-9660.

I was convicted in NY for a DWAI in 2007. I was recently charged with a DWI in New Jersey. What effect will the DWAI have if I am convicted in NJ?

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The law on whether an out of state drunk driving adjudication effects a subsequent New Jersey DWI conviction is set forth in the statute at N.J.S.A. 39:4-50(a)(3): “A conviction of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966,c.73(C.39:5D-1 et seq.), shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%.”

The practical effect of an out of state DWI conviction(s) is whether the municipal prosecutor has knowledge of this information. For instance, the DWI summons may note that individual charged has a driver’s license from another state. The diligent municipal prosecutor may initiate communication with the DMV of this other state to obtain the individual’s driving record. If this due diligence on the part of the municipal prosecutor reveals a prior out of state DWI conviction, the burden shifts to the Defendant to then demonstrate, if he can, that the prior out of state conviction was predicated upon something other than at least a .08% BAC.

There are many layers to this analysis. The mere fact that a defendant may reveal on a mobile video recorder to a police officer that he has an out of state DWI conviction is not sufficient proof for the State to prove that there is such an out of state conviction. Rather, this could merely serve as the basis for the municipal prosecutor to further investigate whether he can prove the fact of the out of state conviction. Necessarily, this would require cooperation between the out of state DMV and the municipal prosecutor who is requesting such information. That is easier said than done.

A defense attorney should always inquire of his client whether there are prior DWI or Refusal convictions. If this privileged attorney-client information is affirmatively answered concerning a prior New Jersey DWI or Refusal, the attorney should always endeavor to order the client’s Motor Vehicle Commission driver’s abstract. If the same inquiry is made which reveals an out of state DWI or Refusal conviction, the defense attorney should ask the client to obtain his driving record from the other state. However, the defense attorney has no affirmative obligation to provide such information to the municipal prosecutor.

However, the defense attorney can never misrepresent to a municipal court judge whether there is an out of state conviction. This point must be emphasized. To reiterate, the defense attorney can never misstate or mislead the municipal court concerning the fact of a prior out of state conviction on his client’s behalf. These issues can become very complex as they relate to the client’s ultimate sentence and ethical considerations on the part of the defense attorney.

Regarding the specific question of the 2007 New York DWAI, there is a published New Jersey case concerning such a circumstance. State v. Zeikel, 423 N.J. Super 34 (App. Div. 2011). In this case, a three judge Appellate Division panel held that the New York DWAI did serve as a prior out of state conviction to enhance the defendant’s current New Jersey case. While this case has not received a lot of notice or comment in New Jersey DWI circles, it is a published case and is the law in our state.

The bottom line is that an individual with a current DWI, with a prior New York DWAI, should make this fact known to his New Jersey DWI attorney.

If you have been arrested for a DWI in NJ, and have been convicted in another state, give Attorney Matthew Reisig a call at 732-625-9660.

What Effect Will A DWI Conviction In NJ Have On My Automobile Insurance Rates?

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Pursuant to New Jersey statutes, an insurance company can cancel the liability coverage of an insured individual convicted of DWI.

Therefore, it is likely that any insured motorist convicted of a New Jersey DWI will have their policy cancelled by the applicable insurance company. These individuals will be able to obtain liability coverage, but only in an “assigned risk” category offered by some insurance carriers.

The end result is that an individual convicted of DWI by New Jersey municipal court will have to obtain a different insurance policy which will increase their rates exponentially.

However, all insurance companies only have the ability to look at an individual’s motor vehicle record for the preceding five year period. In essence, a DWI conviction will only result in these exponentially higher insurance rates for a five year period. If an individual convicted of a New Jersey DWI does not incur another such conviction for the next five years, they will be able to obtain regular insurance coverage.

If you have been arrested for DWI anywhere in NJ, call Reisig & Associates at (732) 625-9660.

Winning Strategy – Eagleswood Municipal Court, Ocean County

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State vs. (Client will remain Anonymous)
Eagleswood Municipal Court, Ocean County
Result achieved on Wednesday, May 22, 2013

This was a fascinating case. The client was charged with DWI, Refusal, and underlying motor vehicle charges. It was a State Police case. This means that the client’s matter contained a Mobile Video Recorder (MVR). The MVR did not reveal any erratic driving. This differed from the State Trooper’s written narrative. Moreover, there were no field sobriety test results since the client declined to perform them.

After his arrest, the client agreed to provide breath samples. However, he experienced extreme anxiety at this point and advised the State Trooper that he required immediate medical attention. The client felt that he was experiencing a cardiac event. The State Trooper felt that the client was faking such symptoms. Ultimately, emergency medical services transported him to a local hospital. After the transport, the State Trooper left the client in the care of the hospital.

The strategy in this case was to obtain medical records from both the hospital and the client to support his assertion that he was physically unable to provide breath samples upon request. Furthermore, an expert’s report was obtained which emphasized that there was no erratic driving, no performance of field sobriety tests, no behavior consistent with DWI, and a medical inability to provide breath samples.

The Defense in this client’s case was very specific to the facts presented. Simply put, it was that this client was not under the influence of intoxicating liquor and that he could not provide breath samples on this particular occasion. The Defense was not that this client could never provide breath samples. Rather this client could not provide breath samples at that particular moment in time.

This case resulted in a dismissal of the client’s DWI and Refusal charges. He plead guilty to Reckless Driving.

This was an extremely well-executed strategy for this particular client’s fact pattern. It was specific to the State’s discovery, the MVR, and information obtained from the client. This was state of the art advocacy.