New Jersey Traffic Ticket Lawyer Blog

In a stunning 4-3 decision, the New Jersey Supreme Court ruled this morning in State v. Marquez that a person who has been arrested for drunk driving has the right to be informed of the obligation to submit to a breath test in the language he speaks.

The Court's holding reversed an Appellate Division decision which had upheld the conviction of a defendant who had been read the standard warning statement (commonly known as paragraph 36) in English even though he only spoke Spanish. In order to implement the new procedures for those who speak foreign languages, the Court will rely upon the efforts of the Attorney General and the Motor Vehicle Commission to provide a means of having paragraph 36 available in a wide variety of foreign languages spoken in our state.

In an opinion released yesterday by the Appellate Division, the Court ruled that before charging a refusal violation, the police should read the second part of the DWI standard statement (paragraph 36) to defendants in those circumstances where the defendant gives an initial, unqualified consent to submitting a breath sample and thereafter is unable or unwilling to provide an adequate sample for analysis.

The first thing to know about roadside testing is that, when you are stopped by police, you do not have to do the tests! You can refuse to perform these tests, and not be given a separate ticket for refusing to perform them.

Unfortunately, police officers are not required to tell you that you do not have to perform these "tests".

And, the current state of the law is that you do not have to be read your Miranda rights prior to performing the tests, even though the very tests that you do on the roadside are going to be used to try to convict you in court.

Since the State can convict you of DWI in two ways: (1) if your blood/breath alcohol concentration is greater than 0.08%, or (2) if your ability to drive a car is impaired due to drinking alcohol or taking certain drugs - it is very important to the reliability of the tests given to you just before your arrest.

When the breath/blood testing is suppressed or kept out of the trial due to errors in that testing, you still have to "beat" the field sobriety testing in order to be successful in your defense of the DWI charge.

The challenge against the testing is based on many things.

How did you get out of your car? If you didn't need to use the car for support as you walked to where the officer told you for the testing, you are better off than if you needed to use the car door to help you out of the car, or used the car for support as you walked along side of it.

Did the officer ask you if you had any injuries that would prevent you from doing the testing, or that would cause you any problems while doing the testing? Any injury to your back, legs, knees, or feet, could cause problems standing on one leg or walking a line, and as a result, even if you performed the testing, the validity or reliability of the testing is compromised.

Do you have balancing problems, middle ear problems, vertigo, or anything else that would cause you to have a problem with balancing while performing these tests?

Are you 50 pounds overweight? Are you over 65 years old? These are reasons that the officer should not do field testing on you.

If you are wearing two-inch heals or anything larger, you should be given the opportunity by the officer to take off your shoes.

The Committee on Opinion has approved the publication of a decision from the Municipal Court of Byram Township (Sussex County). In the opinion captioned State v. White and written by Hon. Richard Bowe, J.M.C., the Court ruled as follows:

The county's Sheriff's Labor Assistance Program (SLAP) is not available to a defendant who has been sentenced to a term of incarceration for driving on the revoked list (NJSA 39:3-40) when the underlying reason for the suspension was for a drunk driving conviction. Rather, only a jail term is permissible under the revoked-list statute.

The publication of decisions from the municipal court is extremely rare in New Jersey. However, the holding in White marks the second time that an opinion written by Judge Bowe has been approved for publication by the Committee on Opinions. His earlier opinion, State v. O'Connor, 405 N.J. Super. 185 (Mun. Ct. 2008) explored the question of whether municipal courts have jurisdiction to impose penalties for a violation of a statute related to starting outdoor fire.

Effective January 16, 2010, the legislature repealed the provision of N.J.S.A. 39:3-40(g) which required a $3000 fine to be paid to the Motor Vehicle Commission (MVC) when the underlying reason for the defendant's suspension came about from a failure to pay surcharges on a timely basis. This sentencing enhancement was formerly imposed in addition to all other sentencing penalties and was collected by the MVC. The $3000 was automatically reduced to a judgment against the defendant until paid in full.

Defendants who have been assessed this fine since January 16th of this year should move for sentence reconsideration pursuant to Rule 7:9-4.

What is an interlock device? - The interlock is a computer-type device that is installed on the vehicle by a licensed N.J. technician. A person who wishes to start a vehicle equipped with the device must blow a breath sample into it. If the device detects a BAC level of .05% or greater, it will not permit the vehicle to start for 1 hour. The device also requires periodic samples while the vehicle is being driven. If the device detects a BAC of .05% or greater, it will emit a loud noise and sound the vehicle's horn non-stop in an effort to persuade the driver to pull over. Once the vehicle is turned off, it will not restart for an hour. The data on the device must be downloaded every 60-days by the technician for filing with the MVC. At that time, the driver can normally pay the maintenance fee. Special discounts are required for poor people.

On January 14th, an amendment to the state's drunk driving laws went into effect that changes the requirements for the use of ignition interlock devices by people who have been convicted of drunk driving and refusal to submit to a breath test. The following will help explain how the new law works:

1. With one exception, following a conviction for drunk driving, the municipal court judge must order that the defendant both install an interlock device on the vehicle he principally operates and refrain from operating any vehicle that is not so equipped. This obligation begins immediately upon the pronouncement of sentence and continues for a determinate period after the defendant gets his driving privileges restored by the MVC. Suspension of registration privileges as an alternative is not longer available under the new statute.

2. The sole exception to this procedure occurs in the case of a first offender who has a BAC of less than .15%. This would include cases where there is no BAC evidence available due to exclusion, refusal and the like. In those instances, the judge has an option as to whether or not to order the interlock device. If the judge so orders, the obligation to use it does not begin until the suspension period is over.

3. For a first offense, the term of the interlock ranges from 6 moths to one year.

4. For second and subsequent offenders, the term of the interlock ranges from 1 year to three years.

5. All refusal convictions require installation of the interlock upon the pronouncement of sentence with a term that tracks the first, second and subsequent offender terms for DWI convictions.

6. School Zone - The school zone offense set forth in NJSA 39:4-50(g) has no interlock provision. However, since the DWI penalties under NJSA 39:4-50(a) would normally survive the merger into a greater-included offense, it is likely that the interlock requirements apply to school zone offenses as a matter of law.

7. The technical sentencing provisions are set forth under N.J.S.A. 39:4-17(a) et. seq

The last time New Jersey updated its traffic laws regarding pedestrians, cars still had fins and drivers didn't have cell phones to take their eyes away from the road.

Fast-forward nearly 50 years, and the nation's most congested state has the highest pedestrian fatality rate in the country, a fact that persuaded officials to toughen laws governing the often-dicey interactions between motorists and pedestrians in crosswalks.
The goal, they said, was to change the culture of driving in a state long known for the incivility of its motorists.

"We needed to update the statutes," Division of Highway Traffic Safety Director Pam Fischer said Wednesday at a news conference at the Prudential Arena. "The old statutes hadn't kept pace with the times in New Jersey."

The new laws take effect in April and will affect motorists and pedestrians. Motorists, previously required to yield to pedestrians, will have to come to full stops and remain stopped or risk $200 tickets (double the current fine) and two points on their licenses.
Pedestrians can be fined $54 for not obeying traffic signals.

Between 20 percent and 25 percent of auto-related fatalities in New Jersey since 2004 have involved pedestrians, the highest rate in the country and more than twice the national average. "

Part of the impetus for the new laws came from Paul Feldman, a Pennsylvania resident whose 21-year-old daughter, Casey Feldman, was killed while crossing a street in Ocean City last year.

Why do I get surcharges?
Your motor vehicle history is checked by MVC every time points are assessed to it. If you acquire six or more points within three years from your last posted violation, you will receive a $150 surcharge plus $25 for each additional point.

The following is a list of surcharges that apply to specific convictions for offenses. They are...

• $100 per year-driving without a license


• $250 per year-driving with a suspended license


• $100 per year-failure to insure a moped


• $250 per year-operating an uninsured vehicle


• $1,000 per year-DUI, for 3 years


• $1,000 per year-Refusal to take breathalyzer test, for 3 years

If you fail to pay your surcharges, MVC will suspend your driving privileges indefinitely and take action in the State Superior Court. This can result -- if you are caught operating a motor vehicle -- in a police officer stopping you and charging you with driving while suspended. This, in turn, can lead to additional fines, suspension and surcharges.

It is required by law that if you change your address, you must notify MVC of your address change. As a practical point, this should be done any way so that if you are scheduled to be suspended, MVC will know where to serve you with written notice. This will permit you to become current with your surcharges, prior to being suspended.

What are surcharges and do they affect me?
Surcharges are monetary penalties assessed by the Motor Vehicle Commission (MVC) on a yearly basis for drivers who have been issued excessive points or committed a specific violation such as DWI.

Surcharges are in addition to any court fines and penalties and are assessed by the MVC.

Can traffic points be assessed if the ticket was dismissed?
Yes they can. Points on your license can now be assessed against your driving history, raise your insurance rates, and lead to a future suspension, even when the ticket has been dismissed in Municipal Court as part of a plea bargain. For example, the New Jersey Motor Vehicle Commission (NJMVC) has started to assess points on traffic tickets that were deemed in court as dismissed via merger.

If a person is charged with driving while intoxicated (N.J.S.A. 39:4-50) and reckless driving (N.J.S.A. 39:4-96) -- a five-point offense -- and the reckless is dismissed by way of merger, under State v. Price, the NJMVC will assess the five points. This could happen even without the driver's knowledge.

The proper approach for dismissing this ticket is by motion of the Prosecutor (State) for a directed verdict of not guilty. This should insulate your from NJMVC points.

Can a cell phone ticket result in points on my license?

Yes it can. A cell phone ticket can result in four motor vehicle points on your license under certain limited circumstances.

On March 1, 2008, N.J.S.A. 39:4-97.3 (a cell phone offense) became a primary offense. Before this was enacted, an officer needed to witness a driving offense or moving violation before stopping you and ticketing you for talking on a cell phone as well. This means that a police officer can now stop you solely for talking on the cell phone (which is a no-point offense when it is charged originally by the officer).

To simplify the confusion, any combination totaling three or more offenses of unsafe driving and unsafe driver/cell phone amendments, will result in four points for the third offense if it occurs within five years of the second offense.