DWI Appeal - NJ Court Bars Suspension as Untimely

In Galeano v. new Jersey, Not Reported in A.3d, 2011 WL 2301104 (N.J.Super.A.D.), the New Jersey licensed defendant was arrested and convicted of DUI in Fliorida in 2003. The Florida court entered a supplemental order dated July 2, 2004, which stated that his probation had been successfully terminated. In July 2010, the New Jersey Motor Vehicle Commission received a report of conviction from Florida pursuant to the Interstate Driver License Compact. The Compact provides, among other things, that “[t]he licensing authority of a party State shall report each conviction of a person from another party State occurring within its jurisdiction to the licensing authority of the home State of the licensee.” The Commission issued a notice dated July 19, 2010, informing Galeano that his driver's license would be suspended for 210 days, beginning August 13, 2010, as a result of an alcohol-related violation that occurred in Florida on August 19, 2003.

On appeal, the Court reversed the suspension, finding that it was untimely:

The Compact does not specify the time in which a party State must report a conviction to the home State of a licensed driver. However, when a contract does not specify the time in which action must be taken, “the law infers that the contract will be performed within a reasonable time.” In re Estate of Yates, 368 N.J.Super. 226, 236 (App.Div.2004). “What constitutes a ‘reasonable time’ is usually an implication of fact, and not of law, derivable from the language used by the parties considered in the context of the subject matter and the attendant circumstances, in aid of the apparent intention.” Ibid. (quoting Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9, 28 (1958)).

Reporting of a conviction of the motor vehicle laws to a licensee's home state within a reasonable time is necessary in order to achieve the purposes set out in the Compact, one of which is to “[p]romote compliance” with laws governing the operation of motor vehicles. N.J.S.A. 39:5D–1(b)(1). A driver's conviction of a motor vehicle offense indicates that the driver may pose some danger to other drivers or the public generally. N.J.S.A. 39:5D–1(a)(2). Therefore, the Compact envisions that such a conviction would be reported to the driver's home State within a reasonable time so that the home State may impose its penalties as a result of that conviction within a reasonable time thereafter.

We are convinced that the Compact does not authorize New Jersey to suspend Galeano's license based on his 2003 Florida DUI conviction because Florida did not report the conviction within a reasonable time. We recognize that the delay here is not attributable to the Commission. Nevertheless, the Commission suspended Galeano's license pursuant to the Compact, and its authority to do so is dependent upon Florida's reporting of the out-of-state conviction within a reasonable time, which did not occur here.

Moreover, the suspension of Galeano's license under these circumstances violates his right to fundamental fairness and due process. License suspension proceedings “affect drivers in a serious way” because they “often threaten [ ]” a driver's ability “to earn a livelihood[.]” In re Arndt, 67 N.J. 432, 436 (1975). Consequently, such proceedings “must meet those incidents of fairness” that underlie the constitutional right to due process. Ibid.

Editor's Note: Many states, in an effort to obtain outstanding fines and monies uncollected on drunk driving cases and bond forfeitures, are uploading DUI/DWI convictions on cases going back to the 1970's (Illinois is one example)The doctrine of laches is sometimes available to fight against these late notices. However, the above case would not be a good laches case, since New Jersey itself acted promptly. If anything the laches would only apply to the reporting party, and such litigation is difficult and many states have statutorily immunized themselves from laches defenses.


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DWI Appeal - New Jersey CDL Driver Wrongfully Charged with Refusal

In State of New Jersey v. Nunnally, --- A.3d ----, 2011 WL 1660628 (N.J.Super.A.D.) the defendant was arrested for a violation of the NJ statute prohibiting operation of a commercial motor vehicle by a driver “with an alcohol concentration of 0.04% or more.”. After defendant refused to submit to the breath test, the arresting officer also charged him with violating the general refusal statute instead of the statute pertaining to refusal by a person driving a commercial vehicle (CDL refusal statute). In New Jersey, a complaint for refusing a breath test must be made within ninety days after the commission of the offense, which had already passed. The Law Division dismissed the refusal charge, agreeing with the municipal judge that the State could not prosecute defendant under the general refusal statute in these circumstances and the State could not amend the complaint to charge defendant with CDL refusal, on the day of trial and after the ninety-day statute of limitations had run. The State appealed.


On appeal, the State raised three arguments. First, it contended that the proposed amendment was solely to correct a “technical defect” in the complaint. The appeals court concluded that a failure to cite the correct substantive offense was not a “technical defect” subject to amendment.



Second, the State argued that the amendment should have been permitted because “a CDL refusal is the same substantive offense or a lesser included offense of a general refusal.” The appeals court concluded that CDL refusal was not a lesser included offense of general refusal, because the two offenses require proof of different facts.



Finally, the State asserted that it can prosecute defendant for violating the general refusal statute, which was cited in the complaint. The appeals court concluded that this driver could not be charged with a general refusal because he was arrested for CDL DUI (0.04% and above) but was never arrested for a general DUI (i.e. 0.08% or above):

"It therefore makes logical sense that an arrest for the predicate offense is an element of the corresponding refusal offense, because the purpose of the breath test is to obtain “scientific evidence” to prove the offense for which the person was arrested. Marquez, supra, 202 N.J. at 497. Of course, the Legislature conceivably could have structured the general and CDL refusal laws differently, to permit prosecution for general refusal based on an arrest for CDL DUI, but that is not how the laws were written. Further, even if we deemed the refusal statutes to be ambiguous, because they are quasi-criminal we would be constrained to construe them narrowly, in favor of the defendant."

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DWI Appeal - NJ Stop for Waiting at Green Light Illegal

In State of New Jersey v. Brackin, --- A.3d ----, 2011 WL 1661381 (N.J.Super.A.D.), the defendant was pulled over after he was stopped at a green light for 10 seconds and then pulled away without incident. The first judge found that the stop was reasonable. Counsel for defendant argued that the stop was unjustified. In support of that position, counsel relied on State v. Cryan, 320 N.J.Super. 325 (App.Div.1999), in which we held that the fact that a vehicle, at 4:25 a.m., remained stopped at a light for five seconds after it turned green, then proceeded slowly to turn left, did not justify a police stop of the vehicle under the police's community caretaking function.On appeal to the Law Division, following a review of the record and oral argument on the law, the judge found that reasonable suspicion sufficient to justify the stop had been demonstrated as the result of defendant's delay in proceeding on a green light. In reaching his conclusion, the judge relied on an unpublished opinion affirming a determination that reasonable suspicion was raised by defendant's conduct in remaining stopped after a light turned green for more than sixty seconds and by the fact that the defendant looked directly at the police officer before proceeding slowly through the intersection. In that decision, Cryan was distinguished on the basis that the delay in proceeding was much shorter and the driver did not look directly at the police. Despite the fact that the evidence in the present case more closely resembled that of Cryan than the unreported decision upon which the judge relied, he found the stop to have been justified. After finding defendant guilty, the judge imposed fines and surcharges, a two-year loss of license and registration privileges and forty-eight hours of instruction at the Intoxicated Driver's Resource Center. A stay of sentence pending appeal was denied.
The appeals court here reversed the conviction and ruled that the stop was illegal:

"[W]e agree that a pause of the length that Officer Tobin testified to observing is not of sufficient length to have raised community caretaking concerns, particularly in circumstances in which defendant's driving after commencing to proceed through the light was unexceptionable.* * * * Officer Tobin could not have had a reasonable belief that a traffic law had been violated, id. at 383, thereby justifying the stop, because as he testified, no cars followed defendant's, and thus there was indisputably no traffic to obstruct. Thus, we adhere to our conclusion that a reasonable, articulable suspicion that a motor vehicle violation had been committed was not established."

EDITORS NOTE: There are several state cases on both sides of the fence on this issue. For example, in Illinois it has been held that a delay of 3-5 seconds at a green light, while the officer is waiting behind the vehicle, is enough to stop the vehicle.


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DWI Appeal - NJ Test Refusal Doesn't Require Proof of Machine Accuracy

In State of New Jersey v. Burns, Not Reported in A.3d, 2011 WL 1584364 (N.J.Super.A.D.) the defendant appealed his conviction for a test refusal, alleging amongst other things that there was no evidence that the breathalyzer test that he refused was reliable or admissible. Specifically he alleged:

"THE CANADIAN AMPOULE TESTING CERTIFICATES ARE NOT SELF–AUTHENTICATING, AND THE STATE CANNOT MEET ITS BURDEN OF ESTABLISHING THE SCIENTIFIC RELIABILITY OF THE BREATHALYZER, THEREFORE, MR. BURNS CANNOT BE CHARGED WITH REFUSAL."

The appeals court first cited to an earlier case, In the Matter of John Ferris, 177 N.J.Super. 161 (App.Div.1981), certif. denied, 87 N.J. 392, (1981), where the defendant asserted that the State must prove that a qualified operator of the breathalyzer was available at the time of the test request. "We disagreed, holding that such a requirement would infer a prerequisite to suspension in addition to those specified in the refusal statute."


The court then rejected the defendant's position that the State must 'prove-up' the admissibility, accuracy, or reliability of the test that the defendant had refused.



EDITORS COMMENT: What if the driver could prove that the test that was requested by the police was in fact inadmissible? For example, what if a driver was asked to blow into an indisputably unapproved device? Would the outcome be different?



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DWI Appeal - NJ Margin of Error in Alcotest Rejected

In State of New Jersey v. Miceski, Not Reported in A.3d, 2011 WL 1327436 (N.J.Super.A.D.), the defendant submitted to a breath test on an Alcotest 7110 MK-III C ("Alcotest"). The Alcotest performs two readings - one involving an infrared analysis, and the other involving an electro-chemical analysis. Here, the reading for both were 0.084, truncated to 0.08%. The court heard testimony from defense expert Gary Aramini, that the Alcotest calibrations were reading 'high'. Aramini provided a technical explanation for the readings, but conceded they were within the acceptable range of tolerance. He also stated that there is 0.005% margin of error in any Alcotest AIR reading. Aramini stated within a reasonable degree of scientific certainty that defendant's actual BAC could have been below 0.08%.

The Law Division granted in part defendant's motion to suppress the Alcotest readings. Because the calibration testing demonstrated “an unofficially high reading,” the court concluded the actual BAC could have been 0.78% or 0.79%. The Law Division remanded the matter to municipal court with an order that the Alcotest results were admissible, but could not result in a per se DWI violation. The Law Division also stayed its order and all further municipal court proceedings pending the State's appeal.
On appeal, the court held that the Alcotest has been held to be “generally scientifically reliable,” and with certain modifications, its results admissible to support a per se violation of N.J.S.A. 39:4–50. Chun, supra, 194 N.J. at 65. The expert's opinions concerning tests conducted during calibration and the solution change did not establish any flaw in the Alcotest or its readings. Instead, the expert's concession that the readings were within acceptable tolerances established that they were within “the range of any set of measurements that is accepted as being representative of a true reading.” The court held that the 0.005% margin of error is taken into consideration when the Alcotest is properly administered:

"Chun ordered the programmed Alcotest range of tolerance be revised such that the benchmark for a true reading of BAC must be set at plus or minus five percent or, in absolute terms, “0.005 percent BAC from the mean or plus or minus five percent of the mean, whichever is greater[.]” Id. at 116. This requires two calculations when setting the upper and lower limits. Id. at 116, 119. Because the Firmware version 3.11 at issue utilized a plus/minus ten percent range of tolerance, manual calculations on a worksheet developed by the Court (Worksheet A) were required to assure accuracy."

The court concluded that as long as the EC and IR readings fall within the acceptable range of tolerance, the final BAC reading shall be deemed sufficiently reliable to be admissible as proof of a per se violation, and that the margin of error of 0.005% could not be used to defeat a per se violation.


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