Long-time Save Jersey readers know that yours truly is a practicing attorney when I’m not torturing Leftists online. As part of my practice, I’ve spent about a decade prosecuting in various South Jersey municipal courts.
Many years of evaluating hundreds of DUI/DWI reports, body cam recordings and Alcotest discovery documents enables me to share what I believe is a unique perspective on the charges currently facing NJ-03 candidate Ian Smith. “Unique” relative to the other stuff you’re reading about it at the very least!
An obvious disclaimer: I’m an attorney but this isn’t legal advice. Ian Smith is obviously innocent until proven guilty. I’m simply applying my knowledge to the available facts in order to give you, the readers, some substantive perspective on a newsworthy story with a likely profound impact on a very competitive congressional district. We also don’t know all of the facts at this time; we only know that Smith has been charged, and we are in possession of some statements from his campaign relaying his version of what happened.
With all of that in mind, here’s a very basic overview in the context of Ian Smith’s case:
- DWI LAW: This is apparently Smith’s second DUI if he’s found guilty. Second convictions ordinarily carry stiff penalties; they include 1-2 years of license forfeiture followed by an additional 2-4 years of an ignition interlock device installed on the guilty party’s vehicle (an expensive mechanism into which you need to blow into in order to start your vehicle’s engine). Smith’s penalties were undeniably serious the first time around (including a 5-year prison sentence) because his 2007 DUI accident resulted in a fatality. DUIs involving serious injury or death are handled by the county prosecutor. This new DUI charge seems likely to be handled by the municipal prosecutor based upon what we know so far. Second DUIs do, however, ordinarily carry a jail term of between 48 hours and 90 days.
- STEP DOWN: HOWEVER, there’s a ten-year step-down rule for New Jersey DUIs. Long story short, if your second conviction is more than 10 years after your first conviction, you will be sentenced as a first time offender. First time DUIs in New Jersey – when there is no blood alcohol content reading, as is the case here – result in a three-month interlock device instillation. Smith’s prior conviction occurred in 2007, so he’s well past the 10 year mark.
- REFUSAL: But Smith isn’t just charged with driving under the influence. He’s also charged with refusing to submit to an alcotest. In New Jersey, it’s illegal to refuse an alcotest. Remember: driving is a privilege, not a right. When you drive on N.J. roads, you’re giving “implied consent” to submit to a breath test. In 1995, the U.S. Supreme Court ruled in Schmerber v. California, the U.S. Supreme Court decided that the Fifth Amendment applies to self-incriminating “communications” or “testimony” but not breathalyzer tests. A refusal will enhance the penalties associated with a DUI conviction; in addition to fines, a motorist guilty of a first refusal faces an additional 9 to 15 months of an ignition interlock device.
- ELEMENTS: The problem facing refusal defendants: it generally makes the prosecutor’s job easier. Here, there doesn’t seem to be a dispute that Smith’s truck swerved (though Team Smith says wind, not driver operation, was to blame). The police only need articulable suspicion to pull you over and effectuate a motor vehicle stop. This case will likely revolve around whether police subsequently had sufficient cause to (1) get Smith out of the car and then (2) make an arrest after the administration of field sobriety testing/observation. If the state can clear those hurdles, all that remains is addressing the refusal. Smith is calling for the release of the body camera footage which officers are supposed to keep activated during the field sobriety testing…
- HOW TO REFUSE: By the way: there is more than one way to refuse. You may expressly say “no.” You can simply refuse to cooperate and follow instructions or, alternatively, sit silently. There’s also what we call a “blowing refusal” when the individual refuses to provide valid breath samples by failing to provide sufficient air volume. Officers are obligated to read an attorney general standard statement (click here) before administering the breath test. If the accused fails to unequivocally consent, the officer is obligated to ask for their consent a second time. Although it’s not very common, sometimes officers forget or neglect to make the follow up request after a first refusal. Sometimes it’s ambiguous whether consent was actually withheld. When it’s a blowing refusal, defendants sometimes provide medical record or testimony to cast doubt on their physical ability to complete the test.
- BY THE ROAD: In the event that the refusal charge doesn’t stick? The case becomes much more difficult for the state; without the benefit of a BAC (blood alcohol content) reading from a breath test, blood or urine, the prosecutor needs to prove his or her case beyond a reasonable doubt “on the physicals” (the field sobriety testing). Trained officers conduct tests – the three most common are the one leg stand, HGN, and walk and turn tests – and then assign points for infractions allegedly committed during the testing (e.g. failing to keep one’s arms at their side for balance during the one leg stand test). Sometimes the officer’s testimony and the available body cam or MVR footage makes it very clear that the person was under the influence of something; I’ve seen videos over the years where the defendant is slurring, swearing, staggering, or barely able to stand at all. Other times it’s far more ambiguous. Smith wants to release the video presumably because he thinks his performance was good (or at least ambiguous enough to cast doubt upon whether he was truly impaired).
- RECKLESS: One final note: You’re hearing a lot about Smith being charged with “reckless driving” among other charges in addition to the DUI and the refusal. Be careful not to read too much into that. Accused drunk drivers are almost always charged with reckless driving, too, though it’s not a “lesser included” offense. DUIs can’t be plea bargained; they’re only dismissed pre-trial when the state believes it can’t prove its case beyond a reasonable doubt. Prosecutors can’t dismiss DUIs simply “in the interest of justice.” In instances when the state decides it can’t proceed on a DUI charge, defendants often plea instead to a reckless driving charge which can carry a suspension as well but don’t include most of the other nasty penalties associated with a DUI.
Again… my goal here isn’t to access Smith’s guilt or innocence. We don’t know enough, folks.
My aim is to help you intelligently interpret the information you’re going to read from the mainstream guys in the weeks to the come. Smith’s ultimate political challenge may be timing. DUIs don’t always result in conviction, but they ordinarily take months to resolve especially in the current “remote court” environment. More difficult cases sometimes require the production of an expert report or an extended period of discovery. With a mid-April first appearance court date, Smith with have less than two months before primary day to wrap this up favorably before GOP voters pass judgment on him and his driving record at the polls.
