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State v Tiwana

NJ DWI Law revised 2023

     NJ DWI Law revised 2023 

      On December 22nd the Governor signed changes to the DWI law (NJSA 39:4-50) which did three pretty important things. 

 

1.Permits plea bargaining in DWIs. Certified Municipal Court Attorneys can better help clients

 

2. Allows an arrested defendant to get an interlock device immediately and then get credit for it if sentenced later. 

 

3 extended the life of the 2019 penalty revisions which were due to expire. 

 

     The bill signed was 

 ASSEMBLY, No. 4800

 

https://pub.njleg.state.nj.us/Bills/2022/A5000/4800_S2.PDF

As amended and reported by the committee, Assembly Bill No. 4800 concerns the use of ignition interlock devices (IID) for drunk driving offenses. 

      P.L.2019, c.248 revised certain provisions of this State’s drunk driving statutes. This legislation: 

1) reduced the length of driver’s license forfeiture for convictions of drunk driving and refusing to submit to a breathalyzer and increased the period of required IID installation for these offenses; 

2) required the license of a drunk driver who attests to not owning, leasing, or operating a motor vehicle to be forfeited during the required period of IID installation; 3) imposed certain IID compliance requirements to be met before an IID may be removed after the required period of installation; and 4) removed enhanced penalties for drunk driving and refusal convictions occurring in a school zone. The legislation is scheduled to expire on the first day of the fifth year after the effective date, which is January 1, 2024. 

       The bill extends the expiration date of P.L.2019, c.248 so that the legislation will expire on the first day of the tenth year next following the effective date of P.L.2019, c.248, which is January 1, 2029. The amended bill also clarifies that only the amendatory language and supplemental sections of P.L.2019, c.248 will expire on January 1, 2029, and the text of the statutes amended in P.L.2019, c.248 will return to the text that was in effect prior to the enactment of P.L.2019, c.248.   

        Under the amended bill, the amendatory language contained in this bill will also expire on January 1, 2029. The intent is for both the amendatory language and supplemental sections of P.L.2019, c.248, and the amendatory language in this bill, to expire on the same date. 

          In addition, the bill provides that a person who has been arrested for certain driving while intoxicated (DWI) offenses may, upon arrest and prior to any conviction, voluntarily install an IID in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, and request from the Motor Vehicle Commission (MVC) a driver’s license with a notation stating that the person is not to operate a motor vehicle unless it is equipped with an IID. 

     The bill provides that the request is required to include a copy of the interlock installer’s certification and a copy of a court order indicating the date of installation and the related charges, to be submitted no later than seven days after the date of the court order. 

The amended bill provides that a person who has been arrested for a first DWI offense whose blood alcohol concentration (BAC) was at least 0.08% but less than 0.10%, who was otherwise under the influence of intoxicating liquor, or whose BAC was 0.10% or higher who voluntarily installs an IID and obtains a driver’s license with the appropriate notation pursuant to the amended bill’s provisions is not to be subject to a fine as set forth under current law. 

Under the bill, a person who has been arrested for a first DWI offense whose BAC was 0.15% or higher who voluntarily installs an IID and obtains a driver’s license with the appropriate notation pursuant to the amended bill’s provisions is to receive a one day credit against the period that the person is required to forfeit the right to operate a motor vehicle under current law for every two days that the person has an IID installed and a driver’s license with the appropriate notation and is not to be subject to a fine. The bill provides that a person is not entitled to the credit against the period that the person is required to forfeit the right to operate a motor vehicle if the violation of R.S.39:4-50 resulted in serious bodily injury to another person. 

        The bill further provides that a person who has been arrested for a second, third or subsequent DWI violation who voluntarily installs an IID and obtains a driver’s license with the appropriate notation pursuant to the amended bill’s provisions is to receive a one day credit against the period that the person is required to forfeit the right to operate a motor vehicle under current law for every two days that the person has an IID installed and a driver’s license with the appropriate notation and is not to be subject to a fine as set forth under current law. A person is not entitled to a credit against the period that the person is required to forfeit the right to operate a motor vehicle if the violation of R.S.39:4-50 resulted in serious bodily injury to another person. 

        Under the bill, the fine waiver for first, second, third, or subsequent offenses only applies if the person possessed a valid New Jersey driver’s license in good standing at the time of the offense and maintained a license in good standing until the date of conviction 

        Under prior law, for a first DWI offense, a person whose BAC was 0.15% or higher is required to forfeit the right to operate a motor vehicle for a period of four to six months following installation of an IID and the IID is to remain installed for nine to 15 months after the period of license forfeiture. Under the amended bill, the person is required to forfeit the right to operate a motor vehicle for a period of three months following installation of an IID, and the IID is to remain installed for 12 to 15 months after the period of license forfeiture. 

         Further, the amended bill provides that notwithstanding any judicial directive to the contrary, upon recommendation by the prosecutor, a plea agreement for a DWI or refusal to submit to a breathalyzer offense is authorized under the appropriate factual basis consistent with any other violation of Title 39 of the Revised Statutes (the State’s motor vehicle code) or offense under Title 2C of the New Jersey Statutes (the State’s criminal code). The bill further provides that a person who enters into a plea agreement for operating or permitting another to operate a motor vehicle while under the influence of a narcotic, hallucinogenic, or habit-producing drug will be required to forfeit the right to operate a motor vehicle for a period of not less than six months. 

               Under the bill, in addition to any penalty imposed under current law, in sentencing a person convicted of a first violation of operating a commercial motor vehicle with a BAC of 0.04% or more whose BAC was at least 0.04% but less than 0.08%, the court is required to order the installation of an ignition interlock device in one non-commercial motor vehicle owned, leased, or principally operated by the offender, whichever the offender most often operates, which is to remain installed during the period that the person’s commercial motor vehicle driving privilege is suspended. 

Finally, the bill provides that nothing in the bill is to be construed to preclude the installation of an IID for a violation of Title 39 of the Revised Statutes under the appropriate factual basis. 

        As amended and reported by the committee, Assembly Bill No. 4800 (1R) is identical to Senate Bill No. 3011 (3R), which was also amended and reported by the committee on this date. 

           COMMITTEE AMENDMENTS 

The committee amendments: 

1) provide that when a person requests a notated license from the MVC, the request is required to include a copy of the interlock installer’s certification and a copy of a court order indicating the date of installation and the related charges, to be submitted no later than seven days after the date of the court order; 

2) clarify that the fine waiver for a person who voluntarily installs an IID and obtains a driver’s license with the appropriate notation only applies if the person possessed a valid New Jersey driver’s license in good standing at the time of the offense and maintained a license in good standing until the date of conviction;  

 

3) provide that in sentencing a person convicted of a first violation of operating a commercial motor vehicle with a BAC of 0.04% or more whose BAC was at least 0.04% but less than 0.08%, the court is required to order the installation of an ignition interlock device in one non-commercial motor vehicle owned, leased, or principally operated by the offender, whichever the offender most often operates, which is to remain installed during the period that the person’s commercial motor vehicle driving privilege is suspended; 

4) provide that a person who enters into a plea agreement for operating or permitting another to operate a motor vehicle while under the influence of a narcotic, hallucinogenic, or habit-producing drug will be required to forfeit the right to operate a motor vehicle for a period of not less than six months; and 

 

KENNETH  VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 
2053 Woodbridge Ave.,Edison, NJ 08817
(Phone) 732-572-0500 (Fax)    732-572-0030 website: www.njlaws.com

 

 

 

39:3-10.13. Alcohol, Controlled Substance Use Prohibited

Notwithstanding any other provision of law to the contrary, a person shall not operate a commercial motor vehicle in this State with an alcohol concentration of 0.04% or more, or while under the influence of a controlled substance.

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Supreme Court removes Guideline 4. DWI plea bargain are allowed per new DWI statute effective February 23, 2024

  Supreme Court removes Guideline 4. DWI plea bargain are allowed per new DWI statute effective February 23, 2024

        NJ Supreme Court officially removed Guideline 4 which had prohibited plea bargaining of DWIs in the Municipal Court. The Court order is expressed as comity with the Legislature's view in the recent DWI statute amendments. This changes 40 plus years on prohibition on DWI plea bargains. The Supreme Court recognized the new   plea-bargaining statute which became effective on February 19, 2024. L.2023, c. 191, §§ 2, 9.

 

 

DWIs  can possibly  be plea bargained as long as there's a factual basis

DWI operation inferred here

 STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
ELIZABETH KARLINSKI,

Defendant-Appellant. _______________________

Argued October 4, 2023 – Decided October 27, 2023 Before Judges Currier and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Appeal No. MA22-001.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2836-21

Defendant Elizabeth Karlinski appeals from her conviction for driving while intoxicated (DWI). Following a trial in the municipal court, Judge Michael A. Guadagno conducted a de novo trial based on the municipal court record. Judge Guadagno issued an order and accompanying written opinion finding defendant guilty of DWI, N.J.S.A. 39:4-50. A key disputed issue was whether defendant was operating her vehicle when it crashed onto private property. In his eight-page written opinion, Judge Guadagno made independent findings of fact and adopted the municipal court judge's "inescapable" inference that defendant had been driving the vehicle. After carefully reviewing the record in light of the governing legal principles and the arguments of the parties, we affirm substantially for the reasons explained in Judge Guadagno's thorough opinion.

The record shows that on March 9, 2019, police were dispatched around 1:00 a.m. to a motor vehicle crash on the lawn of a private residence. The vehicle, a Jeep registered to defendant, had apparently driven through a T- intersection, over a curb, and crashed through a fence surrounding a garden and into shrubbery. Defendant was the only person present when police arrived. A responding officer assisted defendant out of the driver's side of the Jeep. The passenger's side door was locked and unobstructed. Defendant's blood alcohol

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content was determined to be 0.23%—nearly three times the legal limit. Defendant told police her "boyfriend" had been driving and claimed he fled the scene after the crash. However, she did not identify him by last or even first name and provided only a generic description. He was never identified by name and was never found.

Defendant raises the following contentions for our consideration:

POINT I

THE EVIDENCE PRESENTED BELOW WAS NOT SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT OPERATED THE VEHICLE.

POINT II

THE EVIDENCE PRESENTED BELOW DID NOT ESTABLISH THAT MS. KARLINSKI'S VEHICLE WAS OPERABLE.

When a defendant appeals a municipal court conviction, a Law Division judge conducts a de novo trial on the municipal court record. R. 3:23-8(a)(2). The Law Division judge must make independent findings of fact and conclusions of law but defers to the municipal court's credibility findings. State v. Robertson, 228 N.J. 138, 147 (2017); State v. Locurto, 157 N.J. 463, 474 (1999); see also State v. Kuropchak, 221 N.J. 368, 382 (2015).

      

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"[T]he rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues." Locurto, 157 N.J. at 474; accord State v. Stas, 212 N.J. 37, 49 n.2 (2012). “Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.” Locurto, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).

Furthermore, in an appeal from a de novo hearing on the record, we do not independently assess the evidence. Id. at 471. Our review of a Law Division judge's decision is limited to determining whether the findings made by the judge "'could reasonably have been reached on sufficient credible evidence present in the record.'" Id. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1997)) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

N.J.S.A 39:4-50(a) defines driving while intoxicated as: "[a] person who operates a motor vehicle while under the influence of intoxicating liquor . . . or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood. . . ." Our Supreme Court has "construe[d] the terms of N.J.S.A 39:4-50(a) flexibly, pragmatically and purposefully to effectuate the legislative goals of the drunk-driving laws." State

      

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v. Tischio, 107 N.J. 504, 514 (1987). Importantly for purposes of this appeal, "[o]peration [of a vehicle] may be proved by any direct or circumstantial evidence—as long as it is competent and meets the requisite standards of proof." State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005) (quoting State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992)). Operation may be proved "by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated. . . ." Id. at 11.

As Judge Guadagno aptly noted, there is strong circumstantial evidence supporting the inference defendant drove her Jeep into the fence while intoxicated. Notably, police helped defendant out of the driver's side of the car—the passenger's side door was not obstructed. If defendant was in the passenger's seat when the vehicle crashed, she would have exited through the front passenger's door. In other words, there would have been no need for her to shift from the passenger's seat over to the driver's seat to exit the Jeep if she had been in the passenger's seat at the time of the crash.

Moreover, defendant was the only person at the scene of the crash when police arrived. Although she informed police her boyfriend was the driver, she could not provide police with his name or address. There was sufficient

  

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circumstantial evidence for the court to conclude defendant was the driver of the vehicle.

We add that defendant's reliance on State v. Daly, 64 N.J. 122 (1973), is misplaced. In Daly, the State failed to prove the defendant intended to move his car when he was found sleeping in his parked car in a tavern's parking lot. Id. at 124-26. The present situation is starkly different. Here, defendant was not in a parked car, asleep, and in a reclined position. Id. at 124-25. Furthermore, as Judge Guadagno stressed, "there was not a shred of evidence to support defendant's initial claim that a 'boyfriend,' who she never identified, had been driving at the time of the crash and fled the scene."

Nor are we persuaded by defendant's attempts to cast doubt on the credibility of the officer who was the only witness at the trial. Defendant asserts the testifying officer did not know "exactly when the accident" occurred, did not feel the engine to determine whether it was still warm, and did not mention in his report whether the car was still running when he arrived at the scene. Judge Guadagno reviewed the officer's dashcam recording, finding it "thoroughly corroborate[d] his testimony." Judge Guadagno concluded defendant "presented no reason why this court should not defer to the municipal court's well-supported determination that [the officer] testified credibly." We agree.

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We likewise reject defendant's contention the State failed to prove the vehicle was operable. Defendant relies on State v. DiFrancisco, 232 N.J. Super. 317 (Law Div. 1998). In DiFrancisco, the defendant was found behind the steering wheel of a truck that was stuck in a ditch, inoperable, and had to be towed from the scene. Id. at 319-20, 323. In determining the State had failed to prove drunk driving, the Law Division judge focused on the significant amount of time that might have elapsed between when the truck was last operated and when police found it in the ditch. Id. at 320, 323. The judge concluded that although the facts permitted an inference that the defendant had been driving at some prior time, there was no proof he did so while intoxicated. Id. at 323.

DiFrancisco does not preclude other courts from drawing reasonable inferences from the facts presented at trial. As we have already noted, it is well- established that operation of a vehicle while intoxicated may be proven by circumstantial evidence. See Ebert, 377 N.J. Super. at 10.

In this instance, both the municipal court judge and Judge Guadagno concluded defendant drove her car while intoxicated, which resulted in the crash and damage to her vehicle. The record amply supports the conclusion defendant's Jeep was damaged because she drove it through a T-intersection,

   

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over a curb, through a fence, and into shrubbery. In sum, if defendant's vehicle was inoperable when police arrived at the scene,1 it is because she crashed it into a fence. Obviously, it was operable immediately prior to the crash. We reiterate that both the municipal court judge and Judge Guadagno found the inference defendant was the driver "inescapable."

To the extent we have not addressed them, any remaining arguments raisedbydefendantlacksufficientmerittowarrantdiscussion. R.2:11-3(e)(2).

Affirmed.

 

1

The fact that defendant's vehicle was towed from the scene does not conclusively establish it was inoperable. N.J.S.A. 39:4-50.23(a) requires that a vehicle involved in drunk driving be impounded by the arresting law enforcement agency.

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