DEFENDING AN ALCOHOL  DUI/DWI IN NEW JERSEY

            In New Jersey, a DUI/DWI is a motor vehicle offense rather than a criminal offense. Since the it is only a motor vehicle offense, there is no criminal record, although the offense remains on your motor vehicle record permanently. Most people initially think they are being arrested for a crime since they are handcuffed and arrested at the scene. Actually, the officers at that point only have probable cause to believe that the driver is impaired due to the consumption of alcohol or drugs. A drug DUI/DWI is treated differently than an alcohol related DUI/DWI.

            Initially, a police officer has to have a reason to stop a vehicle. The stop can be for something as minor as a brake light being out or other motor vehicle violations. However, only certain motor vehicle offenses are indicative of a driver being impaired. Speeding is not one of them. The stop is the first place that is examined to determine if the police officer had a legitimate reason to stop the vehicle. If there was no legitimate reason for the stop, the case is dismissed.

            Next the officer will observe the driver's behavior while being asked to produce certain documents. If the officer smells alcohol, the driver will be asked if he or she has been drinking and how much was drunk. How the driver responds can have a bearing on the outcome. Then the officer usually will ask the driver to say the alphabet or count numbers, sometimes backward.  The driver will then be asked to exit the car and perform a few Field Sobriety Tests. The officer must instruct the driver properly to have these tests be admissible in court. There are three recognized tests: the Horizontal Gaze Test (where you follow and object with your eyes), the One Leg Balance Tests and the Walk and Turn test. How the officer conducts these tests can be challenged by an attorney based upon the written police report and watching the dash cam video provided to the defendant. The physical condition of the driver can also be important. An attorney can challenge that the officer had probable cause to believe that the driver was impaired. If it is found there was not probable cause then the case is dismissed.

            If the officer decides that there is probable cause to believe the driver is impaired,   the driver will be handcuffed and placed in the squad car and brought back to the station to blow into the Alcotest machine to determine his or her blood alcohol levels. At the station, the officer must operate the Alcotest machine correctly to have the results be admissible in court. The driver must be observed for a 20 minute period prior to blowing into the machine to eliminate any mouth alcohol which could affect the test results. All electronic devices must be removed from the testing room including all cell phones, smart watches and police phones. The mouthpiece must be changed after each blow into the machine and the machine must be in proper working order. Also the operator must be up to date on his or her training. If any one of these procedures is not followed precisely, the reading can be thrown out and the case can only proceed on the observations of the police officer. If the Alcotest reading was .08 or .09 the driver is subject to a 3 month loss of license on a first offense. If the reading is a .10 or above, a driver would be subject to a 7 month loss of license on a first offense. However, if the reading is thrown out, then there will only be a 3 month loss of license if the case can be proven only by observation.

            Please consult with an experienced DUI/DWI attorney in such cases. I have been representing DUI/DWI clients since 2003 and am available for a free phone consultation at 609-773-0488 or email me at stantroy@comcast.net with your questions.