There are a number of common issues that arise in the context of a municipal court DWI appeal. Some issues may be procedural, such as defects associated with the taking of a guilty plea, while others may be more substantive, such as motions to suppress evidence, motions to exclude a confession, and sentencing errors. In all cases, a careful reading of the transcript is necessary to identify those issues to raise on appeal. It is important to be informed as to the standard of proof(s) associated with various aspects of the municipal court trial. Proof beyond a reasonable doubt does not apply across the board to every decision made by a municipal court judge.
1. Standards of Proof
a. Probable Cause
Probable cause must be established for issuance of a complaint. There must be sufficient facts established to demonstrate that a violation of a state statute or municipal ordinance occurred and that the defendant committed it. This standard is generally applied to the initial issuance of process, the complaint, and the issuance of a search warrant. Probable cause has been defined in case law as follows:
More than mere naked suspicion but less than legal evidence necessary to convict. It is not a technical concept but rather one having to do with “the factual and practical considerations of every day life” upon which reasonable men, not constitutional lawyers, act. It has been described by this Court as a “well grounded suspicion” that a crime has been or is being committed. State v. Waltz, 61 N.J. 83, 87 (1972);
b. Reasonable and Articulable Suspicion
This standard of proof must be met by the State to justify an investigative detention and frisk for weapons, to effect a motor vehicle stop, and to seek consent to perform a non-custodial warrantless search. The reasonableness of an officer’s suspicion is judged from the standpoint of a reasonably prudent officer. Due weight must be given to the reasonable inferences an officer is entitled to draw from the facts the officer encounters in light of his experiences. State v. Lund, 119 N.J. 35, 45 (1990).
The standard is not satisfied by a law enforcement officer relying on an un-particularized suspicion or hunch. This standard of proof is often seen in DWI cases where the State must justify the underlying motor vehicle stop. The facts in the record should be applied to the question: was there a reasonable and articulable suspicion that the defendant’s operation of a motor vehicle violated some part of the motor vehicle code?
c. Preponderance of the Evidence
The standard of proof known as “preponderance of the evidence” is applicable in a number of municipal court proceedings, such as motions to suppress evidence, penalty enforcement actions, and parking ticket cases. It is the level of proof usually needed in civil cases. To prevail, the State must prove the allegations are more likely true than not true.
d. Clear and Convincing Evidence
The clear and convincing evidence standard is defined as that amount of admissible evidence that produces in the mind of the judge a firm belief or conviction as to the truth of facts that the municipal prosecutor is trying to prove. It has further been defined as evidence that is so clear, direct, and convincing so as to enable the judge to come to a clear conviction without hesitancy of the precise facts in issue. In Re Seaman, 133 N.J. 67, 74 (1993).
The municipal prosecutor must meet this standard of proof to establish foundational requirements for the admissibility of an Alcotest, or the former Breathalyzer, test result. It also applies to the State in certain motions to suppress evidence where the issue involves consent to search, inevitable discovery of evidence, or the independent source rule.
e. Proof Beyond a Reasonable Doubt
The prosecutor must satisfy this standard of proof in order to secure a conviction in criminal and quasi-criminal proceedings, traffic offenses, and municipal ordinance violations. This standard is also applied to the State when the prosecutor seeks to establish the voluntariness of a confession or when attempting to disprove an affirmative defense. The New Jersey Supreme Court defined this standard in State v. Medina, 147 N.J. 43, 61 (1996), cert. denied, 520 U.S. 1190 (1997) in a jury trial, but the definition applies to a judge acting as a fact finder as well:
A reasonable doubt is an honest and reasonable uncertainty in your mind about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have. Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendant’s guilt. In this world, we know very few things with absolute certainty.
You must examine the record carefully to determine the issues to raise on appeal and argue the standard of proof that applies.
2. Legal Error(s) in the DWI Case
No trial is perfect. Because municipal appeals are tried de novo on the record before the Superior Court judge, it is not necessary to rely on only those errors that were subject to an objection by the defendant or defense counsel. In theory, all errors are automatically preserved in a de novo hearing. However, many, if not most, errors are harmless. The better practice is to focus the appeal on those errors that had the capacity to cause an unjust result. See, generally, R. 2:10-2.
3. The Guilty Plea May be Invalid
The procedural requirements of a legally sufficient guilty plea sometimes form the basis of an issue on appeal. R. 7:6-2(a)(1). A municipal court judge must be satisfied that every guilty plea is entered voluntarily with an intelligent understanding not only for the charge or charges but also the consequences of the plea; namely, what are the penalties that will be faced as a result of pleading guilty? If a plea is entered by a self-represented defendant, the judge must be sure there is an intelligent waiver of counsel.
Every plea must be supported by a factual basis. A defendant must make a knowing and intelligent plea. To ensure this is the case, a municipal court judge must make sure that the defendant understands the charge and the consequences of pleading guilty. The defendant should be advised of the range of penalties, and in the case of a traffic matter, that notice of the guilty plea
will be sent to the New Jersey Motor Vehicle Commission and become part of the defendant’s New Jersey driving record.
Defendants licensed in another state should be advised that their home state will be notified of the violation. The transcript should reflect that the municipal court judge spoke to the defendant directly explaining the consequences of a guilty plea. The transcript should also contain an acknowledgement by the defendant that he or she understands the charge, the consequences of the guilty plea, and that the plea is entered freely and voluntarily, not as a result of threats or coercion, or the payment of any consideration.
For a defendant who was not represented by counsel at the municipal court level, the record should contain a knowing and voluntary waiver of the right to counsel and court-appointed counsel for those cases that subject a defendant to a consequence of magnitude. A consequence of magnitude is any charge that exposes a defendant to a jail sentence, suspension of driver’s license, or suspension of a defendant’s right to apply for a driver’s license, or fines and other penalties that will exceed $750. There should be a colloquy between a defendant and the municipal court judge about the risks of representing oneself while not being familiar with the Rules of Court, the Rules of Evidence, all potential defenses, and the way to effectively cross-examine witnesses.
Failure to knowingly waive one’s right to counsel may be an issue to raise on appeal. Lastly, all guilty pleas must be supported by a factual basis, an admission from the defendant that he or she committed all the elements of the offense charged. The factual basis must come from the defendant directly, not just representations from defense counsel. This requirement applies to every guilty plea involving criminal, traffic, and ordinance violations. This ensures that the defendant is in fact guilty of the offense and subject to the sentence. State v. Pineiro, 385 N.J. Super. 129 (App. Div. 2006).
4. Conditional Guilty Plea
Some transcripts may contain a conditional guilty plea. This is authorized by R. 7:6-2(c). A conditional guilty plea allows a defendant to plead guilty while reserving the right to appeal from certain pre-trial motions. It must be done with the consent of the prosecutor and approval of the court. For instance, a judge may rule against a defendant on a motion to suppress evidence or a motion that there was no reasonable and articulable basis for a motor vehicle stop or a motion to exclude a confession. After such a ruling goes against a defendant, there may be no other defenses to the charge. Therefore, the Rules of Court allow a defendant to enter a conditional guilty plea so as
not to waste time on a trial, while preserving a defendant’s right to appeal the adverse ruling on the motion.
5. Motions to Suppress Evidence
Many municipal court cases are decided on motions to suppress evidence. The motions may be filed in a variety of contexts, such as:
* Lack of a reasonable and articulable suspicion that defendant committed a violation of the motor vehicle code or other law justifying the police stop of the defendant. The motion is made to suppress all evidence collected after the stop.
* Lack of probable cause to believe that a defendant is under the influence of an alcoholic beverage, even if there was a valid stop, justifying the arrest of the defendant. The motion is often made to suppress evidence collected as a result of the arrest in an effort to suppress the Alcotest results, which are obtained as a “fruit” of the arrest.
* A warrantless search of a defendant’s person during a street encounter by law enforcement.
* A warrantless search of defendant’s automobile after a roadside stop to enforce the motor vehicle laws. See, State v. Pena-Flores, 198 N.J. 6 (2009).
* A search of a residence conducted after defendant, or someone else, gave consent to law enforcement to enter the residence.
Municipal court jurisdiction extends only to motions to suppress evidence seized as a result of a warrantless search. Motions to suppress evidence seized pursuant to a search warrant are heard in the Superior Court, R. 7:5-2. The right of an accused to be free of unreasonable searches and seizures is found in the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. In many instances, New Jersey case law has recognized Article I, Paragraph 7 grants persons greater rights than the Fourth Amendment. In all motions to suppress evidence, the State bears the burden of proving that a warrantless seizure of evidence falls within one of the recognized exceptions to the warrant requirement. See, State v.
Hill, 115 N.J. 169 (1989).
6. Alcotest Results
Lack of clear and convincing evidence to support pre-conditions for admitting into evidence Alcotest results. See, State v. Chun, 194 N.J. 54 (2008). For example, a defendant must be observed for 20 minutes before submitting to the test to ensure that he/she has not regurgitated or put substances in his/her mouth that would contaminate the results. Id. at 79. Alcotest results have been excluded on appeal, and a conviction vacated, because the State failed to prove that the defendant was observed for the requisite 20 minutes. See, State v. Filson, 409 N.J. Super. 246 (Law Div. 2009).
7. Defendant is Not Guilty of a DWI
Sometimes the only issue on appeal is whether the evidence presented supports a verdict of guilty beyond a reasonable doubt. You may find that no legal error was committed below. Your client may simply insist that he did not commit the offense alleged. The municipal appeal allows a trial de novo on the record before a new fact finder.
Two fact finders reviewing the same record may reach different conclusions. You may argue the evidence below simply should not firmly convince the Law Division judge of the defendant’s guilt. You may wish to remind the Law Division judge that he or she need not find legal error in the municipal court’s verdict. A different fact finder is empowered to reach a different verdict. The municipal appeal is not like an appeal of a Law Division verdict to the Appellate Division, where the appellate court is required to defer to the fact findings below.
The only deference required in the municipal appeal pertains to credibility findings. The Law Division judge is required to give “due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses.” State v. Johnson, 42 N.J. 146, 157 (1964). Also, the municipal court, because of the volume of its caseload, is not required “to articulate detailed, subjective analyses of factors such as demeanor and appearance to support credibility determinations on each and every witness presented ……” State v. Locurto, 157 N.J. 463, 475 (1999). However, in some cases, credibility determinations turn not on demeanor, which the municipal court judge is uniquely able to assess, but on such issues as consistency of testimony, motive, and bias, which the Law Division judge is equally able to consider. Moreover, no deference need be accorded unsupported conclusions based on speculation by the municipal court. State v. Segars, 172 N.J.
481, 498 (2002) (“Certainly, no deference was to be accorded the wholly unsupported conclusions the municipal court reached by speculating about what prompted the officer’s inaccurate testimony.”)
If the appeal rests on the argument that the State failed to prove the defendant guilty beyond a reasonable doubt, then defense counsel should carefully analyze the record evidence. Counsel may wish to examine closely the elements of the charged offense. Perhaps counsel may wish to focus, in particular, on one of the essential elements of the offense that the State failed to prove. For example, in a harassment case, the defendant’s communications may be indisputable, but the defendant’s “purpose to harass” – an essential element – may be debatable. See, N.J.S.A. 2C:33-4. In some respects, your brief and oral argument would be akin to a summation at the end of a trial.
8. Miscellaneous Grounds to Appeal a DWI Case
There are other common issues that arise during a municipal court trial that may form the basis of an appeal.
a. Speedy Trial
There are four factors that a court weighs in analyzing whether the prosecution of a case in municipal court denies a defendant the right to a speedy trial. The four factors are: 1.) length of delay, 2.) reason for the delay, 3.) assertion of one’s right to a speedy trial; and 4.) prejudice to the defendant. Courts must balance these factors. No single factor is controlling on a speedy trial motion. See, Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L Ed. 2d 101 (1972); State v. Gallegan, 117 N.J. 345 (1989), and State v. Tsetsekas, 411 N.J. Super. 1 (App. Div. 2009).
Miranda warnings must be given before a suspect’s statement made while in custody may be admitted into evidence. Motions to exclude statements and confessions are often made in municipal court. The issue may revolve around the fact of custody. When is a person considered “in custody”? See, State v. Stott, 171 N.J. 343 (2002). If there is an adverse ruling on a Miranda motion raised in municipal court, that issue may be a ground for appeal.
Discovery issues are raised many times in municipal court. There may be pretrial motions to compel the production of certain documents, photographs, videotapes, and other evidence. The record should be examined carefully to determine if denial of discovery had an adverse impact on the municipal court proceedings.
There may be situations where the only issue to be raised in an appeal is the sentence imposed by the municipal court judge. The basis for such an appeal may be that the sentence imposed by the municipal court judge was illegal, beyond that permitted by statue, or that the judge abused his or her discretion and imposed an excessive sentence. Alternatively, the appeal may simply seek a de novo sentencing before another judge, without an assertion of illegality, or abuse of discretion.
Note: Ineffective assistance of counsel is not generally the subject of an appeal to the Law Division since that argument usually relies on things that are outside of the trial record. Ineffective assistance of counsel may be raised in a post-conviction relief application to the municipal court that heard the matter.