Fundamental rights to due process are provided in the Bill of Rights to the U.S. Constitution and numerous paragraphs of Article I, “Rights and Privileges,” of the N.J. Constitution. But do these rights exist in New Jersey’s municipal courts?

Judge Henry Friendly, a member of the U.S. Court of Appeals for the Second Circuit and one of America’s preeminent legal scholars of the 20th century, created a list of due process rights in his 1975 article, “Some Kind of Hearing,” in the University of Pennsylvania Law Review. The list was, and remains, influential, and its first item is “1. An unbiased tribunal.”

In New Jersey, our Supreme Court has articulated what some may call a policy of intolerance against individuals charged with driving while under the influence of alcohol or drugs. This intolerance is explicitly seen in a number of rulings.

In State v. Tischio in 1987, the court stated: “To this end, the Legislature, working in tandem with the courts, has consistently sought to streamline the implementation of these laws and to remove the obstacles impeding the efficient and successful prosecution of those who drink and drive.” [Emphasis added.]

In In re Collester in 1992 it said, “We firmly endorse the governmental commitment to the eradication of drunk driving as one of the judiciary’s own highest priorities.” [Emphasis added.]

And in 1996 in State v. Hessen, it stated, “This Court has a commitment to eliminating intoxicated drivers from our highways.”

But policy, dicta and the “appearance” of bias aside, can one demonstrate this intolerance for intoxicated drivers where it counts: in the courts? Unfortunately, for citizens charged with a violation of N.J.S.A. 39:4-50, driving while under the influence, and those defending them, the answer is an unequivocal “yes.”

This lack of tolerance can be seen in judicial decisions, policies and procedures. In other words, in every aspect of the legal process.

To note some areas where intolerance can be gleaned from rules of law handed down by Supreme Court decisions, consider the bright-line rules articulated in 1991 by the Appellate Division in State v. Bernhardt.

It said: “[T]here is no right to an attorney before taking a breathalyzer test….Miranda warnings need not be given prior to administering a breathalyzer test….Similarly, a defendant has no legal right to refuse to take a breathalyzer test….Further, the blood-alcohol level at the time a breathalyzer test is administered conclusively establishes a violation of N.J.S.A. 39:4-50a, thereby rendering extrapolation evidence inadmissible.”

The court also said, “involuntary intoxication cannot be used as an affirmative defense to a charge of drunk driving….Courts must take judicial notice that breathalyzer tests are accurate and a reading of [.08] establishes a per se violation of N.J.S.A. 39:4-50a.…Finally, a defendant accused of violating N.J.S.A. 39:4-50a is not entitled to a jury trial.”

One can also add the prohibition against plea bargaining DWI cases in municipal court; the “negative inference” for those convicted of refusal; the use of “extrapolation” permitted in death/assault by auto cases in Superior Court but not DWI cases in municipal court; the ability to be convicted of “allowing” an intoxicated driver to operate a motor vehicle based solely on a “per se” reading of .08 percent blood alcohol content regardless of the driver’s physical impairment; and the possibility of a DWI conviction as a result of a “hangover” or “rebound” effect.

In addition, the New Jersey Supreme Court ruled in 2008 in State v. Chun that the Alcotest is an accurate breath-test device “provided” that numerous changes be made—changes the state will not make. But on Sept. 18, 2013, the court held that the Alcotest is accurate even with the significant flaws.

And these lists are by no means exhaustive.

In states with jury trials for DWI, some have reported findings of guilty after trial to be about 50 percent. Colleagues have told me they would be surprised if the trial conviction rate for DWIs was under 90 percent in New Jersey.

Recently, an attorney arguing the intolerance issue in court, began by stating: “There are no exceptions to a citizen’s right to due process under the constitutions of the United States and the state of New Jersey. Except if one is charged with drunk driving.”

I hope that someday, scholarly legal discussion/debate will carry the day and defendants will feel they have the ability to get the “fair shake” everyone deserves in our courts. •