N.J.S.A. 39:4-50 Driving While Intoxicated, Alcohol
The enforcement of the Driving While Intoxicated Laws in New Jersey continues to maintain its hot button status with the NJ Legislature and NJ Police Departments. If you have been arrested for DWI in New Jersey, know this…you are in for a fight. Please be aware, some of the terms that I use in this article are my own, and for the sake of explanation, so do not think that all of these terms are legal terms of art.
The New Jersey DWI laws are a little like house odds at a casino. There are two different general types of DWI case. In the overwhelming majority of DWI trials, the defendant will have to defend against both. With each DWI arrest the two components will typically be the observation portions of the offense and the per se, or Breathalyzer/Alcotest component. This means that the State has essentially two ways to convict, meaning if the Alcotest results are inadmissible, the prosecutor can still proceed on the observation case.
The observation portion of the offense usually begins with a police officer alleging some motor vehicle violation that draws his attention to the DWI suspect. This traffic infraction is also necessary to establish a reasonable suspicion to stop the the motorist, and will eventually become part of the totality of circumstances necessary to establish probable cause for an arrest. Remember, there is not always sufficient probable cause for an arrest, and DWI charges can be beat just on this basis.
Operation, mind you, is always an element of the DWI offense that the State must prove to convict. In some cases, the police may not observe the defendant driving the motor vehicle. However, given the circumstances, the state may prove this element through circumstantial evidence. Depending on the facts, if the police did not actually observe you operating your vehicle, then you may have a good defense to the DWI charge.
In the majority of NJ DWI offenses the police do claim to observe operation, Once the driver is pulled over for a legitimate reason, the office can conduct a roadside investigation and ask the driver questions. This does not invoke Miranda, which only applies to custodial interrogation. Nonetheless, custodial interrogation is an amorphous concept that may or may not exist depending on the circumstances. Things that you say to the police may incriminate you, but if those questions were asked in violation of Miranda, then those statements must be suppressed, and not considered during trial.
Getting back to the the initial traffic stop, This provides law enforcement and opportunity to observe signs of possible intoxication, i.e. odor of alcohol, slurred speech, open container, droopy or bloodshot eyes, flushed face, fumbling hand movements, etc. If the officer believes that the driver may have consumed alcohol, the next step is to have the driver step out of the vehicle to perform field sobriety test. There are three, and only three, standardized field sobriety test that have been tested for valid results. Although other test can be utilized, the results they produce are highly questionable. The proper administration of the standardized field sobriety test (the walk and turn, the one leg stand, the HGN) is important in determining if there is probable cause to arrest. If these test are not administered correctly, a motion to suppress for lack of probable cause is recommended. I am certified in the administration of the standardized field sobriety test and received the same training as the NJ State Police do. I know when there has been a procedural error in the administration of these test and what defenses are available based upon that. Secondly, even if the Judge does find probable cause, he may conclude that the errors in the administration of these test raised reasonable doubt as to whether the DWI suspect was under the influence of alcohol or drugs, another element that the State must prove beyond a reasonable doubt.
Moving forward, once the officer makes the decision to arrest, you will be transported back to police station. When you arrive, the police will ask you a series of questions. You should be Mirandized prior to this. After the police ask you these questions, they will typically read from the Standard Statement that advises DWI suspects regarding their right to refuse to submit to a chemical breath test. Refusal is a separate penalty, and upon conviction, the defendant will be sentenced to a 7 month loss of license, fines, fees, and to install the ignition interlock system in their car. In my opinion, it is much tougher to defend a refusal charge than a driving while intoxicated offense.
If you agree to provide samples, the machine will take two readings. Now, There are a MULTITUDE of procedural steps that must be followed leading up to this point. A close examination of the discovery and a thorough client interview will reveal if there are any available defenses based on the police officer’s incorrect procedure leading up to and during the administration of the Alcotest/Breathalyzer.
A BAC of .08% and above is a per se violation of the DWI statute. However, even if the suspect provided a sample below .08, the State may proceed on the observation portion of the offense. Do you remember when I was talking about house odds? This is one example. Nonetheless, in my experience, it is much harder for the State to prove it case when it can only rely upon the observations. Depending on prior convictions for DWI, the BAC can lead to a conviction which could result in a loss of license from 3 months to ten years, possible jail time, and heavy fines/surcharges. Prior offenses is also complicated legal topic and you should consult an attorney if you have questions regarding this. Do not just rely on what you read online.
In addition to the role of the officer in the proper administration of the chemical breath test, there are also technical aspect of the machine itself that must be looked at. Remember, the Alcotest is just a computer. Computers frequently malfunction. Think of your own at home and all the weird glitches it has. The Alcotest machine has hard drive that records just about everything the machine does. That hard drive and its contents must be requested in discovery and examined. I am also certified in the administration of the Alcotest. I understand not only the way the machine works, but also the proper usage, and common malfunctions. All of this experience can be put to work for you. This means that there may be a basis to suppress the Alcotest BAC readings. This will make the State rely on the observations alone, which gives the defendant a fighter’s chance.
I have just scratched the surface of DWI defense in this article. There are so many different aspects to a New Jersey DWI charge. Each case is factually different and these unique facts create a new puzzle for a NJ DWI lawyer in each case.
If you have questions about your case, I am available 24/7 for a phone consultation.