So you went out last night and had a few drinks. You get behind the wheel, and on your way home, you hear the sirens. The police are pulling you over. As DWI attorney in Newark and throughout New Jersey, I understand from dealing with hundreds of clients charged with a violation of NJSA 39:4-50 the sinking feeling that you may have experienced.
When someone is arrested for DWI there are several questions that a defense attorney will ask. Here is the opportunity to ask the first question. Was the stop justified? An officer cannot stop a vehicle unless he has a reasonable and articulable suspicion that a law has been violated. The term “reasonable and articulable suspicion” is a legal term which basically boils down to; was the stop warranted? Was your driving erratic, was there a complaint from a citizen, did you commit some type of motor vehicle infraction, was there an accident, or perhaps you were stopped at a checkpoint. If it was a checkpoint, there are stringent rules associated with this. The police would have had to follow a series of constitutional guidelines to establish that the checkpoint was legitimate. An experienced defense attorney will explore the reason for the stop and make sure that it is valid and justified. If the stop itself does not hold up to scrutiny, perhaps the remainder of the evidence against you would fall as well.
You pull over to the side of the road. The officer approaches your vehicle and asks you for your license, registration, and insurance. He claims to smell an odor of an alcoholic beverage emanating from your vehicle and asks you if you have had anything to drink tonight. Regardless of your response, the officer needs probable cause to believe that you are operating a vehicle under the influence of alcohol. He will observe your hand movements while you retrieve your documentation. He will also take note of the status of your eyes as well as your speech. In addition, he will ask you to step out of the vehicle to perform “Field Sobriety Tests”.
Here is another opportunity for an experienced defense attorney to ask more questions. It is important to determine what road side tests you were asked to perform. There are only three acceptable field sobriety tests that an officer can administer as determined by NHTSA (National Highway Traffic Safety Association).
The first approved test is called The Walk and Turn Test. The officer asks you to take nine heel to toe steps in a straight line and then pivot and take the same nine heel to toe steps back. The second test is the One Leg Stand. Here the officer asks you to lift the leg of your choice and balance while counting for thirty seconds. The third test is the HGN(Horizontal Gaze Nystagmus). Here the officer will ask you to keep your head still while following a pen with only your eyes. An officer must first assess whether you are injured before beginning any of these tests. An experienced defense attorney can use a variety of factors to mount a defense against what the officer perceives as poor performance on these tests. During a consultation with our firm an attorney will ask questions about the weather conditions, the time of the evening, the lighting conditions, as well as what you were wearing during testing. The answers to all of the above questions could affect the outcome of your case.
The officer than places you under arrest for DWI. You are driven to the police station so that you can blow into a breath testing machine. Here is another opportunity for questions. Were you observed for twenty minutes prior to being asked to blow? There is a requirement for a twenty minute observation period to avoid any contamination by mouth alcohol. The operator of the test is also required to remove all cell phone devices, radios and electronic equipment from the room before administering the test. Did the officer read the implied consent warning to you? Again, the answers to these questions could form the basis of a defense. It is important to hire a defense attorney who is knowledgeable in this field. There are many opportunities to defend successfully against a DWI for an experienced defense attorney.
You will then be asked to blow into the machine twice. The machine will provide a reading. In order for that reading to be admissible the State is required to prove a variety of different things. The State must prove that the machine was in proper working condition and that the reading is within acceptable tolerances. The State must present the defense with several different items. Among them are a minimum of 12 required documents which are necessary to prove that the reading is accurate. The State also has the burden of proving that the officers did everything right. If the State is unable to provide any of these documents, or they are not in proper order an experienced defense attorney can seize on this opportunity.
The penalties will vary depending on whether this is your first, second, or third offense. If it is your first offense, there are different tiers that a DWI can be prosecuted under.
Tier 1: If you have a result of less than a .10, there is no reading because you decided not to blow, or the State is unable to prove the breath testing machine was working accurately. Here the State will move forward with what is called an observation case. Can they prove that you were driving impaired using the “observations” of the officer? To prove this, the officer will testify to what he observed during the stop. The law refers to it as the “totality of the circumstances”. For example, were your eyes bloodshot and watery? Were your hands fumbling while you tried to retrieve your paperwork? Was your speech slurred? How did you perform on the roadside tests? If the State is successful, you will be subject to the penalties associated with a first tier DWI. You’re driving privileges will be suspended for three months, you will have to spend 12 to 48 hours in the IDRC (Intoxicated Driver’s Resource Class) and you will be subject to fines in the court. You will also be assessed a $3000.00 surcharge from DMV and an increase in your insurance.
Tier 2: If you have a result of over .10 and the State is successful in their prosecution, you are subject to second tier penalties. You’re driving privileges will be suspended from 7 months to 1 year. You will have to spend 12 to 48 hours in IDRC and again will be subject to fines as well as surcharges from DMV and your insurance company. If your reading is higher than a .15, the additional penalty of having to install an interlocking device in your vehicle will apply.
If you decided not to take the test you will be charged with a refusal along with the DWI. A refusal carries with it a 7 to 12 month license suspension for a first offense as well as fines in court. It is possible to be convicted of both and be sentenced to both offenses.