1.) Did the Officer Have A Valid Right to Conduct a MV Stop?
The first defense to be analyzed is whether the police officer conducted an illegal stop of your motor vehicle (MV) on the night of your arrest. A New Jersey Police Officer must have a reasonable and articulable suspicion that a motor vehicle offense or crime has been or is being committed before he can execute a valid MV stop. For example, if an officer stops your car on suspicion of driving while intoxicated (DWI), for the sole reason that you were only one of a few cars on the road, late at night, after the bars or nightclubs closed, the NJ DWI charge (and any other offenses) may be dismissed based on a violation of your Constitutional rights. This is because the officer's suspicions were not reasonable and articulable.
2.) Did the Officer Have Probable Cause to Arrest Me for DWI?
The second defense to be examined in your DWI case is whether the officer had probable cause to arrest you for suspicion of DWI. Typically, after an officer stops your vehicle for a DWI charge, he or she will try and gather as much evidence as they can to determine whether they have probable cause to arrest you. Probable cause has been defined as "reasonable grounds or belief that a person should be arrested or searched." Blacks Law Dictionary. In making a probale cause determination, an officer may conduct Standardized Field Sobriety Tests (SFTS). In analyzing this evidence, an attorney will look to see if the Officer properly instructed and administered these tests to you. For example, if the officer failed to properly instruct you how to perform the test or had you perform the test on an un-level surface, then the Officer's grounds for arresting you may not be reasonable and the arrest may be deemed illegal. Further, any evidence obtained after the illegal arrest is subject to being suppressed (not permitted to be used at trial).
Often times, you may find yourself in a "he said, she said," scenario where it is your word against the DWI officers. This is where a thorough investigation by your attorney can lead to objective evidence that corroborates your version of the incident. For instance, the NJ State Police and many local towns have video cameras/mobile video recorders (MVR's) in their patrol vehicles. MVR videos and other cameras (either in the booking room of the police station or breath testing area) can demonstrate that you performed the road side, field sobriety tests adequately or perfectly. This can be used to challenge the credibility of the officer who may have wrote in his police report or testified at trial that you failed these sobriety tests. There have been cases where an officer testified that a defendant was slurring his or her speech, stuttering, incoherent, incapable of walking and swaying. However, the MVR video demonstrates that the defendant was speaking clearly and that his ability to walk was fine.
3.) Was the Officer Qualified to Administer a Breathalyser/Alcotest to me?
The third defense to be analyzed in your DWI case is whether the Breathalyser or Alcotest Operator was qualified to administer the test. In order for a Police Officer to administer a Breathalyser Test or Alcotest Examination to you, he or she must have extensive training, schooling and testing in the use of the Breathalyser or Alcotest pursuant to N.J.A.C. 13:51-1.6. Upon completion of the DWI training, the officer will receive a card/license that states that he or she is certified to administer the test. If the Officer cannot provide same at or before trial, the Breathalyser or Aloctest readings are inadmissible and must be dismissed.
4.) How Long is the Officer's Breathalyser/Alcotest certification Card Valid for?
A NJ Breathalyser/Alcotest Operator is only permitted to perform breath tests for the remainder of the year for which the card/license was issued, plus two (2) years. N.J.A.C. 13 51-1.7(a). For example:
Patrolman # 1: receives his certification card on 1/1/06. His certification will be vaild for the remainder of 2006, plus two years (or 12/31/08).
Patrolwoman # 2: receives her certifcation card on 12/31/06. Her certification will be vaild for the remainder of 2006, plus two years (or 12/31/08).
What this means is that even if your breathalyser reading was .08 % or higher (the per se limit to establish a conviction for DWI) and: (1) the officer performed the test properly; and (2) the machine functioned properly on the day in question, the readings may be inadmissible/dismissed if the Officer failed to be re-certified prior to subjecting you to the Breathalyser/Alcotest.
5.) Can the Readings Still Be "Thrown Out" if the Officer is a Certified Operator?
The answer is yes! Under certain circumstances the Breathalyser or Alcotest readings or test results can be excluded by the Court. For instance, if the Breathalyzer was not administered properly, then the readings or test results can be excluded. This is because there are specific procedures which must be adhered to in order for the tests to be deemed valid.
In some instances, the Breathalyser or Alcotest can and will malfunction. When an attorney spots such a malfunction, either through his or her experience or through the hiring of an expert, then he or she can establish that the readings were not accurate. This can lead to the readings or results of the Breathalyser or Alcotest being excluded by the Court.
Under the New Jersey Supreme Court case of State v. Chun (decided March 17, 2008), our Supreme Court ruled that the new Alcotest 7110 breath testing unit is scientifically reliable if : (1) the operator was qualified to perform the test; (2) the Alcotest functioned properly on the day of the test; and (3) that the operator properly operated the Alcotest machine on the day of your arrest. By way of example, if the officer conducting the Alcotest fails to observe you for 20 minutes prior to the breath testing, the results of the testing may be excluded in court. This is because you may have burped, had heartburn or introduced something into your mouth which could result in a false "high reading." False readings can also be induced by items such as asthma spray, cough drops, mouthwash, paints, and fingernail polish, which contain some kind of alcohol.
6.) If the Readings are Excluded from Trial, am I "Not Guilty" as a Matter of Law?
You are not out of the proverbial woods just yet. As a general rule, the prosecutor can prove you guilty of DWI by properly introducing a breath, urine or blood test that demonstrates you were "under the influence" or by testimony or other evidence that you demonstrated physical signs of being intoxicated; including, but not limited to, your SFTS results. When a breath test, urine or blood test is excluded by the Court, the Prosecutor is left trying what is called an "observation case".
Can I Bring Witnesses to Attack the State's Observation Case?
Yes, In this instance the defense would cross-examine the officer on what he did see or what he did not see. The defense would also introduce experts to impeach (poke holes in the officer's credibility) the officer.
Expert Witnesses on the SFTS's
Additionally, an expert (usually a retired State Trooper) can be retained to render an opinion as to whether the arresting officer's observations have any merit. The expert would also opine as to whether the coordination and balance tests adminstered by the arresting officer were performed properly.
Medical Expert Witnesses for Past/Present Physical Injuries
If you perform inadequately on the SFTS's, a medical expert can be retained by you and be called in to testify that you suffer from certain physical ailments (i.e. bad knees, bakc or ankles) that impacted your ability to perform the SFTS's. The medical expert would render an opinion that it was your physical ailments and not your ingestion of alcohol that caused the poor SFTS's results.
Independent or Lay Witnesses
In many instances, there can be independent witnesses. These could be people at the scene of an accident, waiters/waitresses, bartenders, hospital employees and other person with first hand knowledge of your physical capabilities in or about the time of your arrest.
7.) What are Procedural Defenses and Can They Help Me?
Procedural defenses are commonly referred as technical defenses or technicalities. These defenses are usually grounded in the concept that the officer or Prosecutor failed to do something that they were required to perform.
By way of example, prior to asking you to submit to a Breathalsyer or Alcotest examination, an officer is required to read you a form which is referred to as implied consent warnings. The officer must read you the implied consent law before you submit to the breath test. The failure to read the form or failure to read the most recent form may result in the dismissal of charges.
Another example is your State and federal Constitutional Right to receive a Speedy Trial. The Prosecutor and Court must provide a trial within a reasonable specified time period. If they fail, the case may be dismissed. There are guidelines issued by the Administartive Office of the Courts that suggest that DWI cases be resolved within 60 days of your arrest.
Another example of a procedural defense arises when the State failes to timely provide complete discovery . Whenever a prosecutor has failed to supply all the required evidence, defense counsel can file a motion to compel discovery (evidence) by a specific date. If the discovery is not received by the court ordered date mandated by the judge, then the charges may be dismissed. The preceding examples are but a few of the procedural defenses that can be asserted on your behalf.
8. Can I Defeat a Prosecution for DWI based on a Blood or Urine Test?
The answer is yes, if it can be established that the blood or urine test is inaccurate. The admissibility of the blood test results will be determined upon the protocol used in the taking of the sample. For instance, there are instances where the nurse taking the blood fails to follow the prescribed rules of testing, analysis, and preservation. There are also instances where the officers fail to follow the chain of evidence when submitting or receiving the evidence from the New Jersey State Police lab. This can result in uncertainty as to whether the correct person's sample was taken and tested.
It should be noted that the following examples of defenses are the not the entirety of all the defenses available to you. They are provided solely to give you ideas as to how you can best retain an attorney to defend yourself . In every case, there can be additional defenses asserted, but these may only be revealed by a careful and trained review of the discovery in your case.
