Howes & Howes, Attorneys at Law

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Howes & Howes Client Wins DWI case on appeal

One of the many clients that Howes & Howes represented over the past year was a young man who was facing his third DWI as well as a summons for refusing to take a breat test.  At trial, the municipal court found the client not guilty of driving while intoxicated, but found him guilty of refusing to provide a breath sample.  We appealed.  The Law Division granted the appeal, and found the client not guilty of refusal.

One of the most severe penalties meted out by the municipal courts in New Jersey are the penalties upon a third conviction for driving while intoxicated.  There are severe financial penalties, but the punishment that hurts the most are the 10 year suspension of New Jersey driving privileges and 180 days in jail.  One of the clients that Howes & Howes represented in the past year was facing the grim prospect of those harsh penalties. 

Our client was arrested for DWI and refusing to provide a breath sample.  Was he intoxicated?  Yes, he and a friend had gone out to dinner and to socialize and our client had consumed alcohol.  Did he have two prior convictions for DWI?  Yes, he had two youthful indiscretions.  Did he give breath samples to the police?  No, he did not.  Was he guilty of anything?  Absolutely not.

The municipal court found our client not guilty of driving while intoxicated because we proved at trial that he was not operating the motor vehicle under New Jersey law.  The police found our client asleep in the front seat of his car.  The motor was not running.  The gas tank was empty.  At trial, we produced two witnesses.  One was our client’s friend, who testified that he had driven the car, and that the car had run out of gas.  Once the car ran out of gas, the friend took a taxi home and left our client asleep in the car.  The second witness was the taxi driver who drove the friend home.  As such, he had not operated the motor vehicle. 

The municipal court found, however, that our client was guilty of refusing to provide a breath sample.  When you are convicted of an offense in municipal court, you have the right to appeal to the Criminal Division of the Superior Court.  Your case is heard by a Superior Court judge sitting in the county courthouse.  The judge decides the case based on the transcript of the trial in the municipal court and any evidence entered into evidence in the municipal court.

We raised two issues on appeal.  One was that our client was not given clear and unambiguous notice of the consequences that arise from a failure to provide breath samples.  New Jersey law provides that by taking the wheel of a car, a New Jersey motorist gives his or her implied consent to give breath samples if a police officer has probable cause to ask for breath samples.  In order to prove a violation beyond a reasonable doubt, the prosecutor must prove that the police gave the defendant such notice.  In our case, the Superior Court held that since the state did not produce at trial the form allegedly used by the police to explain the consequences, that the State had not proven the defendant guilty of refusal.

The consequences of a conviction in this case would have been devastating.  The ten-year suspension of his driving privilege would have cost him his livelihood.  It is almost impossible in New Jersey to function without a car and a driver’s license because in this mostly suburban state, there is precious little public transportation.  Not all cases end the way we might want them to end, but in this case we got the right result because the client was not guilty and was willing to trust the system and trust his attorney.


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