per se rule in New Jersey

2026Rather, our Supreme Court instructs, "[o]nly in the most limited circumstances have we applied a per se rule to decide whether a defendant knowingly and voluntarily waived Miranda rights." State v. Sims, 250 N.J. 189 , 211-12 (2022) (quoting State v. Nyhammer, 197 N.J. 383, 403 (2009)).

2024See Sims, 250 N.J. at 211-12 ("Only in the most limited circumstances have we applied a per se rule to decide whether a defendant knowingly and voluntarily waived Miranda rights" (quoting Nyhammer, 197 N.J. at 402-03 )).

2026Co., 399 N.J.

2025Co., 399 N.J.

2026In P.Z., the New Jersey Supreme Court recognized that although "Miranda established a per se rule to counteract the inherently coercive nature of custodial interrogations by law enforcement[,] it did not eliminate the due process requirement that all statements given during an interrogation must be voluntary." 152 N.J. at 113 (citing Miller v. Fenton, 474 U.S. 104, 109-10 (1985)).

2025In P.Z., our Supreme A-1416-23 35 Court recognized that while "Miranda established a per se rule to counteract the inherently coercive nature of custodial interrogations by law enforcement[,] it did not eliminate the due process requirement that all statements given during an interrogation must be voluntary." 152 N.J. at 113 (citing Miller v. Fenton, 474 U.S. 104, 109-10 (1985)).

2017The Court acknowledged the debate regarding the effect of temperature on Alcotest results and concluded "the effect of breath temperature on BAC is theoretical at best, and that the effect, if any, is ameliorated" by safeguards that "effectively underestimate BAC." Chun, supra, 194 N.J. at 109 .9 Dr. Saperstein's opinion that the Alcotest result should be discounted because there is a .004 or a .005 margin of error in the machine is not tenable based upon the Court's conclusion that the Alcotest 9 We note further there is no proof in the record, besides defendant's testimony, that he had a "fe

2017The Court acknowledged the debate regarding the effect of temperature on Alcotest results and concluded "the effect of breath temperature on BAC is theoretical at best, and that the effect, if any, is ameliorated" by safeguards that "effectively underestimate BAC." Chun, supra, 194 N.J. at 109 .9 Dr. Saperstein's opinion that the Alcotest result should be discounted because there is a .004 or a .005 margin of error in the machine is not tenable based upon the Court's conclusion that the Alcotest 9 We note further there is no proof in the record, besides defendant's testimony, that he had a "fe

1988If the defendant asserts the right to counsel, then under the per se rule adopted in Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 , reh’g den., 452 U.S. 973 , 101 S.Ct. 3128 , 69 L.Ed.2d 984 (1981), all interrogation must cease until a lawyer has been provided, “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. at 1885, 68 L.Ed.2d at 386 ; see State v. Kennedy, 97 N.J. 278, 285 (1984); State v. Wright, 97 N.J. 113, 122-23, 125-26 (1984); State v. McCloskey, 90 N.J. 18, 25-28 (1982).

1988If the defendant asserts the right to counsel, then under the per se rule adopted in Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed. 2d 378 , reh'g den., 452 U.S. 973 , 101 S.Ct. 3128 , 69 L.Ed. 2d 984 (1981), all interrogation must cease until a lawyer has been provided, "unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at *111 484-85, 101 S.Ct. at 1885, 68 L.Ed. 2d at 386 ; see State v. Kennedy, 97 N.J. 278, 285 (1984); State v. Wright, 97 N.J. 113, 122-23, 125-26 (1984); State v. McCloskey, 90 N.J. 18, 25-28 (1982).

2020Id. at 363.

1988See State v. Taylor, supra, 80 N.J. at 363 .

1988If the defendant asserts the right to counsel, then under the per se rule adopted in Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 , reh’g den., 452 U.S. 973 , 101 S.Ct. 3128 , 69 L.Ed.2d 984 (1981), all interrogation must cease until a lawyer has been provided, “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. at 1885, 68 L.Ed.2d at 386 ; see State v. Kennedy, 97 N.J. 278, 285 (1984); State v. Wright, 97 N.J. 113, 122-23, 125-26 (1984); State v. McCloskey, 90 N.J. 18, 25-28 (1982).

1988If the defendant asserts the right to counsel, then under the per se rule adopted in Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed. 2d 378 , reh'g den., 452 U.S. 973 , 101 S.Ct. 3128 , 69 L.Ed. 2d 984 (1981), all interrogation must cease until a lawyer has been provided, "unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at *111 484-85, 101 S.Ct. at 1885, 68 L.Ed. 2d at 386 ; see State v. Kennedy, 97 N.J. 278, 285 (1984); State v. Wright, 97 N.J. 113, 122-23, 125-26 (1984); State v. McCloskey, 90 N.J. 18, 25-28 (1982).

2021See also State v. Smith, 134 N.J. 599, 617-18 (1994) (declining to extend to passengers the per se rule of Pennsylvania v. Mimms, 434 U.S. 106 (1977), which permits police to routinely order a driver to get out of the car following a routine traffic stop).10 That's because we recognize a passenger, albeit seized along with the driver, "has not engaged in the culpable conduct that resulted in the vehicle's stop," giving rise to a passenger's "legitimate expectation" that he or she will not be "further inconvenience[d] . . . by any intrusions beyond the delay caused by the lawful stop." Smith, 1

2021See also State v. Smith, 134 N.J. 599, 617-18 (1994) (declining to extend to passengers the per se rule of Pennsylvania v. Mimms, 434 U.S. 106 (1977), which permits police to routinely order a driver to get out of the car following a routine traffic stop).10 That's because we recognize a passenger, albeit seized along with the driver, "has not engaged in the culpable conduct that resulted in the vehicle's stop," giving rise to a passenger's "legitimate expectation" that he or she will not be "further inconvenience[d] . . . by any intrusions beyond the delay caused by the lawful stop." Smith, 1

1988If the defendant asserts the right to counsel, then under the per se rule adopted in Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 , reh’g den., 452 U.S. 973 , 101 S.Ct. 3128 , 69 L.Ed.2d 984 (1981), all interrogation must cease until a lawyer has been provided, “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. at 1885, 68 L.Ed.2d at 386 ; see State v. Kennedy, 97 N.J. 278, 285 (1984); State v. Wright, 97 N.J. 113, 122-23, 125-26 (1984); State v. McCloskey, 90 N.J. 18, 25-28 (1982).

1988If the defendant asserts the right to counsel, then under the per se rule adopted in Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 , reh’g den., 452 U.S. 973 , 101 S.Ct. 3128 , 69 L.Ed.2d 984 (1981), all interrogation must cease until a lawyer has been provided, “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. at 1885, 68 L.Ed.2d at 386 ; see State v. Kennedy, 97 N.J. 278, 285 (1984); State v. Wright, 97 N.J. 113, 122-23, 125-26 (1984); State v. McCloskey, 90 N.J. 18, 25-28 (1982).

2025Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland, 466 U.S. at 687 .] In Flores-Ortega, the United States Supreme Court considered whether "counsel [was] deficient for not filing a notice of appeal when the defendant ha[d] not clearly conveyed his wishes one way or the other." 528 U.S. at 477 .9 In rejecting a per se rule, the Court considered: "whether counsel in fact consulted with the defendant about an appeal." Id. at 478 .

2013The Court explained that “the per se analysis is reserved for those cases in which counsel’s performance is so likely to prejudice the accused that it is tantamount to a complete denial of counsel.” Id. at 616 , 577 A 2d 455 (citing Cronic, supra, 466 U.S. at 659, 104 S.Ct. at 2046 , 80 L.Ed.2d at 668 ; Strickland, supra, 466 U.S. at 692, 104 S.Ct. at 2067 , 80 L.Ed.2d at 696 ).

2025Applying a "totality of the circumstances" analysis, both federal and New Jersey precedents require reviewing courts to consider whether the defendant's statements were "the product of an essentially free and unconstrained choice by [the defendant]," or instead "whether the defendant's 'will [was] overborne and [their] capacity for self-determination critically impaired.'" P.Z., 152 N.J. at 113 (quoting Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991), and Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973)).

2021Accordingly, applying a "totality of the circumstances" analysis, both federal and New Jersey precedents require reviewing courts to consider whether the defendant's statements were "the product of an essentially free and unconstrained choice by [the defendant]," or instead "whether the defendant's will [was] overborne and his [or her] capacity for self- determination critically impaired." Id. at 113 (quoting Arizona v. Fulminante, 499 U.S. 279 , 285–86 (1991), and Schneckloth v. Bustamonte, 412 U.S. 218 , 225–26 (1973)); see also State v. A.M., 237 N.J. 384, 398 (2019) (listing A-2485-19 11 r

2024See e.g., Frost, 158 N.J. at 81-88 (reversing convictions for multiple improper statements by assistant prosecutor, including "don't be distracted by lawyer talk" by defense counsel, while recognizing that "we do not adopt a per se rule that requires reversal of every conviction whenever there is evidence of egregious prosecutorial misconduct during trial."); State v. Pindale, 249 N.J.

2012Frost, supra, 158 N.J. at 88 , 727 A.2d 1 .

2017Our Supreme Court has held breath tests "must be taken 'within a reasonable time' after the arrest." State v. Tischio, 107 N.J. 504, 521 (1987). "[P]roof of operation of a motor vehicle, coupled with a blood alcohol level of .10% or greater taken from a breath or blood test administered within a reasonable period of time after operation constitutes a per se violation of the statute." State v. Snyder, 337 N.J.

2017Our Supreme Court has held breath tests "must be taken 'within a reasonable time' after the arrest." State v. Tischio, 107 N.J. 504, 521 (1987). "[P]roof of operation of a motor vehicle, coupled with a blood alcohol level of .10% or greater taken from a breath or blood test administered within a reasonable period of time after operation constitutes a per se violation of the statute." State v. Snyder, 337 N.J.

2025See also Laidlow, 170 N.J. at 622-23 ("Our holding is not to be understood as establishing a per se rule that an employer's conduct equates with an 'intentional wrong' . . . whenever that employer . . . commits some other OSHA violation.").

2024It 10 The Court in Laidlow noted its holding was "not to be understood as establishing a per se rule that an employer's conduct equates with an 'intentional wrong' . . . whenever that employer removes a guard . . . from the equipment . . . or commits some other OSHA violation." Id. at 622-23 .

2022“Only in the most limited circumstances have we applied a per se rule to decide whether a defendant knowingly and voluntarily waived Miranda rights.” Nyhammer, 197 N.J. at 403 (discussing A.G.D., 178 N.J. at 68 ; Reed, 133 N.J. at 261-64 ).

2022“Only in the most limited circumstances have we applied a per se rule to decide whether a defendant knowingly and voluntarily waived Miranda rights.” Nyhammer, 197 N.J. at 403 (discussing A.G.D., 178 N.J. at 68 ; Reed, 133 N.J. at 261-64 ).

2022“Only in the most limited circumstances have we applied a per se rule to decide whether a defendant knowingly and voluntarily waived Miranda rights.” Nyhammer, 197 N.J. at 403 (discussing A.G.D., 178 N.J. at 68 ; Reed, 133 N.J. at 261-64 ).

2022“Only in the most limited circumstances have we applied a per se rule to decide whether a defendant knowingly and voluntarily waived Miranda rights.” Nyhammer, 197 N.J. at 403 (discussing A.G.D., 178 N.J. at 68 ; Reed, 133 N.J. at 261-64 ).

2026Accordingly, in addition to determining whether police complied with Miranda's prophylactic requirements, reviewing courts must consider whether the defendant's statements were "the product of an essentially free and unconstrained choice," or whether instead "the defendant's 'will [was] overborne and [their] capacity for self-determination critically impaired.'" Ibid. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973)).

2025Applying a "totality of the circumstances" analysis, both federal and New Jersey precedents require reviewing courts to consider whether the defendant's statements were "the product of an essentially free and unconstrained choice by [the defendant]," or instead "whether the defendant's 'will [was] overborne and [their] capacity for self-determination critically impaired.'" P.Z., 152 N.J. at 113 (quoting Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991), and Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973)).

2021The per se rule announced today will change current law and longstanding police interrogation 1 Miranda v. Arizona, 384 U.S. 436 (1966). practices.

1985Of course, the Government will have a heavy burden to show that the waiver was knowingly and intelligently made, Miranda v. Arizona, supra, 384 U.S. at 475 , 86 S.Ct. 1602 [at 1628], but we perceive no compelling reason to adopt the per se rule advocated by petitioner. [ 495 F. 2d at 37 .] See also Blanks v. State, 254 Ga. 420 , 330 S.E. 2d 575 (Sup.Ct. 1985); United States v. Cobbs, 481 F. 2d 196 (3 Cir.1973), cert. den., 414 U.S. 980 , 94 S.Ct. 298 , 38 L.Ed. 2d 224 (1973); Wilson v. United States, 398 F. 2d 331 (5 Cir.1968), cert. den., 393 U.S. 1069 , 89 S.Ct. 727 , 21 L.Ed. 2d 712 (1969);

2015We noted that Judge "differentiated the smell of marijuana from the odor of alcohol emanating from either the passenger compartment or driver by pointing out that, unlike the use of marijuana, the use of alcohol is not a per se violation of the law." Id. at 241 (citing Judge, supra, 275 N.J.

2015We noted that Judge "differentiated the smell of marijuana from the odor of alcohol emanating from either the passenger compartment or driver by pointing out that, unlike the use of marijuana, the use of alcohol is not a per se violation of the law." Id. at 241 (citing Judge, supra, 275 N.J.

2017The consequences for finding a per se rule was applied are significant: By their nature, per se rules require prosecutors to disregard relevant factors, contrary to the guidelines, and when a defendant demonstrates that a prosecutor has relied on such a rule, the presumption that the prosecutor has considered all relevant facts is overcome. [Baynes, supra, 148 N.J. at 444-45 (emphasis added).] Here, the conclusion that a per se rule was applied can only be inferred from the statement of the prosecutor and the deficiencies in the rejection letter.

1999We held that the prosecutor’s per se rule could not be justified by the “appropriate circumstances” clause of Guideline 3(i), because “appropriate circumstances” existed only in cases “of a more serious nature than possession of CDS for personal use.” Id. at 445 , 690 A.2d 594 .