apply to a defendant charged with operating a motor
vehicle under the influence of intoxicating liquor in
violation of Title 39. Therefore, a defendant can not avail
himself of the affirmative defense under the Code of
involuntary intoxication. The Legislature has thus made
it clear that once drivers become intoxicated and operate
a motor vehicle, it does not matter how they became
intoxicated or whether they realized they were
intoxicated or believed they could overcome the effects of
intoxication. The violation is the doing, not the
knowing. The critical factor in the offense is objective,
not subjective.
- Entrapment
State v. Fogarty, 128 N.J. 59 (1992), rejected
defendant’s argument of entrapment and quasi-
entrapment, and affirmed his DWI conviction. Relying
on Hammond, the court found that the defense of
entrapment, a Code defense, was not available in a motor
vehicle case. Nor was the defendant entitled to assert a
defense of quasi-entrapment, on the grounds that but for
the instruction of a police officer, the defendant would
not have moved his vehicle. The duty rests on the
operator not to drink and drive. Moreover, because such
a defense relies in part or entirely on the defendant’s
subjective state of mind, the court deemed such a defense
to be pretextual. DWI is an absolute liability offense
requiring no culpable mental state.
- Physician-Patient Privilege
In State v. Schreiber, 122 N.J. 579 (1991), the
Supreme Court disallowed a defense based on the
physician-patient privilege (N.J.S.A. 2A:84A-22.2) on
the grounds that a DWI offense is not a crime or
disorderly persons offense and therefore the privilege did
not apply. The defendant’s hospital blood test results
secured through a subpoena duces tecum issued by the trial
court was enforceable and the blood test results were
admissible. The fact that the defendant’s physician took
it upon himself to voluntarily contact the police to advise
them of the defendant’s blood test results was not
sufficient to warrant a suppression of the blood test
results. The police, relying on the unsolicited tip,
secured a subpoena duces tecum for the blood test results.
- Expert Testimony to Rebut Breath Test Results
In State v. Manfredi, 242 N.J. Super. 708 (Law Div.
1990), the trial court disallowed expert testimony from
a physician for the purpose of attempting to contradict
otherwise reliable breath test results. The defense sought
to use a physician for the purpose of testifying as to the
defendant’s state of intoxication based upon the
physician’s observation of the in-station video tape. The
trial court held that there is a clear legislative intent and
a strong legislative policy to discourage long trials
complicated by pretextual defenses, and found that
expert testimony regarding observations of defendant’s
videotaped behavior is inadmissible for the purpose of
contradicting the results of an otherwise reliable
Breathalyzer test. Defendant’s collateral attack on the
Breathalyzer constitutes nothing more than the type of
pretextual tendentious defense that the legislature
sought to discourage by its enactment of a statute based
upon objective measurements of intoxication.N. SentencingState v. Rama, 298 N.J. Super. 339 (App. Div. 1998),
aff’d 153 N.J. 339 (1997), held that N.J.S.A. 2C:20-2.1a
mandates the imposition of a monetary penalty and
suspension of a defendant’s driving privileges upon
conviction for automobile theft.- Prior Offenses
Nichols v. U.S., 511 U.S. 738, 114 S.Ct. 1921, 128
L.Ed.2d 745 (1994), appears to have abrogated that
portion of State v. Laurick, 120 N.J. 1 (1990), pertaining
to sentencing a DWI offender that prior uncounselled
DWI convictions do not count in applying the
progressively enhanced penalties that second and third
DWI offenders receive, since one of the underlying cases
relied upon by the N.J. Supreme Court was overturned.
But see, State v. Latona, 307 N.J. Super. 387 (App. Div.
1998), certif. denied, 154 N.J. 607 (1990), which
reaffirmed the holding in Laurick, that prior
uncounselled DWI convictions do not count in applying
the progressively enhanced penalties that second and
third DWI offenders receive.State v. Lucci, 310 N.J. Super. 58 (App. Div. 1998),
certif. denied 156 N.J. 386 (1998), reversed defendant’s
driving while intoxicated conviction but affirmed his
conviction for refusal to take the Breathalyzer test,
concluding that he was informed of the consequences of
a refusal and that a “confusion” defense to this offense had
no viability given his conduct on a videotape of his
processing at the police station. Defendant’s two year
driver’s license suspension for this conviction was illegal
because N.J.S.A. 39:4-50.4a mandates a ten year
suspension for this five-time DWI offender and the
statute’s “step down” provision did not apply to him.