The Best Defenses to a DWI Charge

There are numerous ways to defend against a New Jersey DWI charge. There are no guarantees that any of these defenses will work. However, if you don’t “build up” your DWI defense, then don’t expect any downgrades or dismissals at court. Here is a list of some of the best DWI defenses that are commonly used by New Jersey DWI attorney Theodore Sliwinski, Esq. Not all of these defenses will apply and be successful in every DWI case. This is simply a list of some of the defenses to use if you are charged with a New Jersey DWI.

1. Contest the Field Sobriety Tests - The bottom line is that the Standardized Field Sobriety Tests (SFST’s) are not reliable evidence to prove that a person is intoxicated. In a healthy person, the  one leg stand test is only 65% accurate. The walk ‘and‘turn test is also only 68% accurate. Any person with injuries, medical conditions, fifty pounds or greater overweight, and sixty five years or older cannot be validly judged by field sobriety tests. The eye test is not admissible in N.J. courts to prove that you were intoxicated. By knowing the rules for the administration for the tests a skilled New Jersey DWI lawyer can show how the tests are biased.

There are many grounds to contest the field sobriety tests. These best defenses are:

a. The field sobriety tests are not scientific.

b. The police officer was not properly trained.

c. The officer did not use standardized NHTSA tests.

d. The officer did not properly instruct you on how to perform tests.

e. The officer did not use objective standardized scoring criteria.

f. The officer had you perform the tests under improper conditions.

g. Your age or weight make you an improper candidate for tests.

h. You have a physical disability that makes you an improper candidate for these tests.

I. You have a psychological condition that makes you an improper candidate for the tests.

j. The officer lied about your performance.

2. Contest the Non-Standard Field Sobriety Tests – These non-standard field sobriety tests are also not that reliable. The silly test(s) of touching your finger to your nose, saying the alphabet, or counting backwards are not valid tests to determine intoxication. In summary, neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests.

3. Challenge the reason(s) for the stop - Police officers can’t stop a vehicle on a mere hunch, and they can’t arrest  you without having sufficient “probable cause.” The police must have “reasonable suspicion” to stop a vehicle. Generally, these are subjective observations by the police are based on something unusual about the way a person is driving. This is a very low standard and it can be satisfied by virtually anything which appears out of the ordinary that might be a sign of a driver being under the influence. As a general rule: if the police want to stop you and investigate something, they will, and they will justify their actions afterward. Therefore, if the police officer stops a vehicle just because he saw the driver walk out of a bar and get into the car, then the DWI charge could be dismissed based on a violation of the driver’s constitutional rights.

Some common scenarios that have constituted “reasonable suspicion” are as follows; the license plate lights are out; the  brake lights not working; the tail light out; headlights out, loud music, apparent underage drivers out late at night; turning to wide, turning to narrow, driving to fast, driving to slow, unusual activity in the car,‘ having sex, and drinking from a shiny container. Basically, the facts that support reasonable suspicion are only limited by the imagination of the police. In fact it is not unusual for the police to stop a driver with a license plate light not working, and mysteriously the next day the light starts working again. In most DWI court cases it is your word against the police. Most Municipal Court judges tend to give the police the benefit of the doubt absent extraordinary circumstances, direct contrary proof, or the officer’s bad reputation.

If the police stop you for any traffic violation, no matter how minor, then it is sufficient to justify the traffic stop. Once you are stopped then the police must then establish reasonable suspicion that you might be driving impaired. Some of the more obvious signs that the police look for are: smell of intoxicants; slurred speech; bloodshot watery eyes; admission to drinking; alcohol containers in the vehicle; and mood swings, i.e. laughing one minute and crying the next. The observation of any of these would establish “reasonable suspicion” for the police to continue the investigation. The reason a police officer asks you “have you been drinking tonight” is because if he gets a “yes” answer from you, he right then and there has established “reasonable suspicion” merely because you were driving the car and admitted to drinking.

In summary it is essential to file a motion to suppress in most of the DWI cases. The failure to file a motion to suppress is the biggest mistake made in most DWI cases. Even though this motion doesn’t succeed very often, a DWI case can still be won by simply filing one. Although a motor vehicle stop is generally legally justified if you were weaving from lane to lane, any weaving within a lane may not make the stop justified. It is important to emphasize regardless of the ultimate success of a motion to suppress, this motion may resonate with the Municipal Court judge.

In my professional opinion the best defense to any DWI case is that the initial stop of the vehicle was not based on probable cause, and that the stop was unconstitutional. Many Municipal Court judges don’t like to “buy” technical arguments that the Breathalyzer or the Alcotest machine was malfunctioning or inaccurate. Most Municipal Court judges also don’t want to get a reputation for being “soft” on DWI drivers. However, many Municipal Court judges will be much more inclined to dismiss a DWI case if there are real constitutional violations. It is much more respectable for a Municipal Court judge to dismiss a DWI case on Fourth Amendment grounds instead of a perceived legal loophole created by a police officer’s mistake, or by a malfunctioning Alcotest machine.

4. Videos or Dispatch Tapes – All New Jersey State Troopers, and local police departments have video cameras in their patrol vehicles. These videos along with videos from testing rooms, booking rooms, and other sources can provide strong defenses to some DWI charges. In some cases these videos can prove that the results of the field sobriety tests are not as poor as the officer alleges. In many cases these tapes significantly contradict what the police allege in the police reports. Quite often these tapes prove that the driver’s speech was not slurred, or incoherent, their balance was not swaying and/or stumbling, and that their attitude was not uncooperative or belligerent.

If a skilled lawyer obtains these videos or dispatch tapes then he can use them to impeach the police. A skilled DWI defense lawyer can prove that the police officer had a bias toward the driver, and that he is not accurately testifying about the driver’s clues of intoxication. It is important to emphasize that most vehicle stops are audibly recorded on dispatch tapes. It is imperative that these tapes are obtained and carefully reviewed.

5. Breath Test Operator License Expired - An N.J. breath test operator must possess an unexpired operator’s license or the breath test result is inadmissible. An operator’s license automatically expires in three years. In many urban cities it is quite common for the breath test operator to have their Alcotest operator’s license expired. The operator’s license has to be renewed every three years. The bottom line is that in the urban arrears the police departments have to fight higher grades of crime. Sometimes DWI enforcement must take a back seat to fighting more serious levels of crime. Consequently, in my experience it is not uncommon for the operators in New Jersey urban cities to have their operator’s card expired.

6. Challenge the breath tests - Breath testing is often very inaccurate. Virtually all experts concede that one breath test alone is unreliable. Breath testing is subject to many inherent inaccuracies. The breath test is the most common test that people are asked to take once they are taken to the police station, but it is also highly susceptible to error. If the Alcotest is not administered correctly, then it will not accurately measure your blood alcohol concentration. Thereafter, your lawyer may be able to persuade the judge to throw the breath test results out. The main reason for the breath test’s potential inaccuracy is that, while it is supposed to measure how much alcohol is in your lungs, any residual alcohol in the mouth will result in a mistakenly high reading. Below is a list of additional factors that can make a breath test unreliable.

A. The Temperature of Your Breath

The breath test works on the assumption that your breath is 34 degrees centigrade. Studies done with this equipment have shown that the real average breath temperature for people who have been arrested on a DWI is closer to 35.5, with some as high as 37. This alone would mean that the result of the test would be between 10 and 20 percent higher than it really is.

B. How Fast Your Body Eliminates the Alcohol

Everyone has a different metabolism, but the breath test assumes that everyone is the same. This means that a person whose body gets rid of alcohol slower will have a higher BAC than someone with a faster metabolism, even after having the same amount to drink. Breath testing assumes that the person is “post absorptive.” This means that the test assumes that the person is no longer absorbing alcohol into the blood. If you have a slow metabolism, you might still be absorbing alcohol by the time you take the test. If so, it will read your B.A.C. as significantly higher than it actually is. If you know or suspect that you have a slower than an average metabolism, you may eventually argue that your metabolism skewed the result of your test.

C. Belching, Hiccuping or Vomiting Prior to a Test

Time is the most important factor here. A person should not be tested for at least 15 minutes after belching, hiccuping or vomiting, as this increases the amount of alcohol on the breath. The police officer is required to constantly observe you to ensure that you have not belched, hiccuped or vomited within 15 minutes of taking the test. Constant observation is a rule that the police officer must follow. If it is not followed, then the results of the test may be called into question.

D. Problems in Mouth, Such as Blood, or Dentures

If there is any blood in your mouth when you take the test, it may increase the B.A.C. result. If you have dentures, which trap alcohol in the mouth, then it could skew the test result(s).

E. Other Chemical Compounds in Your Mouth

Strictly speaking the Alcotest does not detect alcohol (ethyl alcohol). It only detects part of the alcohol molecule called the methyl group. The significance of this is that the Breathalyzer will also register other compounds besides alcohol, other compounds that are commonly found in human breath. If any of these compounds are present, then it will result in an inflated and inaccurate B.A.C. reading.

7. The Alcotest Machine Malfunctions – In my experience it is quite common for an Alcotest machine to malfunction. The Alcotest is a machine that is manufactured by Draeger Safety, Inc. The manufacturer still has not removed all of the “kinks” from the machine. Moreover, the Alcotest machine is based heavily  software. As we are all aware software constantly have glitches.  I have had several cases wherein the police were required to transport their DWI suspect to several different local police stations to administer their breath test(s) on the Alcotest machine. The reality is that the Alcotest machine is also constantly breaking down and malfunctioning. If there is a malfunction of the breath test machine, then your test results will not be accurate. If the prosecutor can’t prove that all the proper procedures were followed with the regard to the operation of the Alcotest machine, then the results of these breath tests will not be admitted into evidence. If you are going to rely your DWI defense on the grounds that the Breathalyzer or Alcotest machine malfunctioned then you must obtain an expert’s report to bolster your defense.

8. Breath Test Operator Unlicensed – A breath test operator must possess a valid operator’s license, or the breath test is inadmissible. The reality is that many DWI arrests are made late at night and on weekends. Quite often the more experienced police officers do not work during the night shift. The rookies are often required to work the night shifts and on weekends. In my experience the rookies are not as competent as the experienced police officers are to conduct the breath tests on the Alcotest machine.

9. The Alcotest Machine Not Properly Operated - There are specified procedures which must be followed for a breath test to be valid. The failure to follow these procedures can result in an improper B.A.C. reading(s), and it may be a reason to bar the readings from court.

10. Medical and Health Problems – In some cases a DWI suspect’s medical problems can be used to discount the results of any failed sobriety tests. A DWI suspect’s medical problems with his legs, arms, neck, back and eyes could affect the results of field sobriety tests. Sometimes a crafty lawyer can use a DWI suspect’s medical problems to “explain away” why their client may have failed the sobriety tests.

11. The Officer’s Prior Record and Statements – A police officer’s prior disciplinary record can be used to challenge the officer’s credibility. Furthermore, if the police officer has previously testified in a DWI case about the reliability of tests or how to administer them, then this prior testimony can be used to challenge the officer’s skills at administering field sobriety tests if he answers differently from trial to trial. Moreover, if the police officer misled the driver about the consequences of refusing to submit to tests under New Jersey DWI law then the results of the refusal, or the readings from the machine may be excluded in court.

12. Bad Weather – Any weather reports that establish low visibility, high winds, and other conditions can be used to explain poor driving or balance on the field sobriety tests. The weather reports can be used to establish high winds, low visibility, and other conditions to explain poor driving or poor balance.

13. Failure to Conduct Observation Period – If the police fail to keep you under observation for twenty minutes prior to the breath testing, then the results of the breath tests could be thrown out of court. The police are required to observe the DWI suspect for twenty minutes before any breath tests are administered. The police officer must observe the DWI suspect to determine if he throws up, belches or burps. If the DWI suspect should throw up, belch or burp then this could compromise the breath test, and produce an inaccurate B.A.C. reading(s). A DWI suspect must be observed for twenty consecutive minutes, and he must not be observed throwing up, belching or burping.

14. Independent Witnesses – In some cases there are witnesses who observe accidents. Consequently, bartenders, hospital personnel and others can provide critical evidence of the defendant’s sobriety.

15. Failure to Read the Implied Consent Warning – A police officer must completely read the driver New Jersey Implied Consent law before the driver submits to the breath test. The police officer must read the DWI suspect Article 36. These provisions explain to the DWI suspect that he must take the breath tests or he will lose his driver’s license on a refusal charge. In many cases the police officer does not fully comply with Article 36. Sometimes, the police officer simply forgets to read Article 36 to the DWI driver. This mistake could prove to be critical. The failure to read the form or failure to read the correct form may result in the dismissal of DWI charge.

16. Errors with the Alcotest 7110 Machine - There are many critical errors that may occur with the Alcotest machine. These potential errors include; a) the failure to input the correct arrest information; b) there are improper machine settings; c) the failure of the machine to recognize errors in testing; and d) the failure of the machine on timing issues during the testing.

17. Interfering Substances – A false breath test could be caused by many interfering substances. Asthma spray, cough drops, paints, or fingernail polish, which contain forms of alcohol all can create higher B.A.C. readings during breath testing. Moreover, if a DWI driver is exposed to certain chemicals then this factor can also improperly increase the B.A.C. readings. The chemicals that a person works with or use may cause a false positive result on the breath tests.

18. Failure to Provide a Speedy Trial – If a DWI driver is not provided with a trial within a certain period of time, through delays of the court or prosecutor, then the charges must be dismissed. The A.O.C. guidelines require that DWI cases be resolved within 60 days of the date of the arrest. In my experience I have never seen a Municipal Court judge dismiss a DWI charge based on the grounds that the DWI suspect’s constitutional right to a speedy trial was violated. In theory a DWI defendant can always argue that his case should be dismissed on the grounds that his constitutional right to a speedy trial has been violated. However, for all practical purposes in my 18 years of practice I have never seen a Municipal Court judge dismiss a DWI case on this ground. The bottom line is that DWI trials are often endlessly adjourned. Many Municipal Courts are overwhelmed and they can’t handle all of their cases.

19. Expert Witness – Expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests. If you really want to increase your odds of “beating your DWI” then it is imperative that you obtain an expert witness. The best expert witness in New Jersey on the area of DWI law is Gil Snowden of DWI Consultants. Mr. Snowden has worked for the New Jersey State Police for almost two decades. He was also their head Breath Test Coordinator Instructor. Basically, he inspected the Breathalyzers for all of New Jersey’s local police departments for decades. He inspected the Breathalyzer to ensure that they were in proper working order.

Mr. Snowden is retired from the New Jersey State Police and he formed his own company called DWI Consultants, Inc. His expert fees are very reasonable. He reviews the discovery, the videotapes and any other discovery and he will assess your chances of beating the DWI charge. Moreover, he will review the discovery and advise you if the Alcotest machine was in proper working order and if it was operated correctly. Basically, he will review the case and advise you as to the strength of any possible defenses and any “loopholes” to purse. If there are none, then he is very straightforward and he will advise you so.

20. Blood Test Are Inaccurate – The admissibility of blood tests in a DWI case depends on the procedures that were used when taking of the sample. In some cases the nurse at the local hospital fails to follow the prescribed rules of testing, analysis, and preservation. Hospital tests have been shown to overestimate a blood sample by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons. When hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results can report falsely elevated readings.

21. Failure to Provide Complete Discovery – If the prosecutor has not provided all the required evidence, then a motion to compel evidence must be filed. If the discovery is still not provided by the date ordered by the judge, then the charges may be dismissed. The prosecutor must also provide the DWI defendant with an after certificate. Basically an after certificate verifies that the Alcotest machine was in proper working order when the DWI suspect was given his breath test.

The New Jersey State Police send a Breath Test Coordinator Instructor to inspect the Alcotest machine each and every month at every local police station. The inspector must issue a Breath Testing Instrument Inspection Certificate each month. Sometimes there are glitches and the local police departments do not receive their after certificates in a timely fashion. In some cases a strong DWI defense lawyer can use this mistake to force a Municipal Court Prosecutor to agree to a downgrade of a DWI charge from a seven-month suspension to a three-month suspension. In my experience some Municipal Court prosecutors are swamped and they simply don’t provide you with adequate discovery no matter how many times it is requested. If the court is open-minded then in some cases this mistake can be used as leverage to obtain a downgrade of the DWI charge, or to obtain a lesser sentence.

In summary it is imperative to obtain the after certificate. Moreover, it is important to review at least one year’s worth of Breath Testing Instrument Inspection Certificate. A review of these certificates often reveals that the Alcotest has a history of malfunctioning and of overheating.

22. Drug Based DWI’s / Drug Recognition Evaluation (DRE) – If your blood pressure and temperature were taken, and if you were induced to perform additional physical tests in the police station, then you went through D.R.E. protocol. This D.R.E. protocol has not been proven reliable in New Jersey court.

23. Operation/Driving – In many cases a DWI defendant may try to sleep in his vehicle in the parking lot of the local bar or of a night club. In my experience the police have been very diligent and they have been arresting people even if they can’t prove operation the vehicle. Quite often the police will issue a DWI citation merely because they find a person sleeping in the bar’s parking lot, and they smell alcohol on the person. If the police officer wakes up that person and then smells alcohol, then in most cases he will a DWI citation. In this type of scenario, the key issue is whether the driver had an intent to drive. A critical fact is where the driver’s keys are located. If the keys are located in the ignition then New Jersey case law indicates that this is sufficient to prove operation. However, if the keys are located in a person’s purse on somewhere else in the vehicle, then in most cases this is not sufficient to prove operation.

24. Mouth Alcohol – Mouth alcohol refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

25. Blood alcohol Concentration – There exists a wide range of potential problems with blood, breath or urine testing. “Non-specific” analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100 to 1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-‘examination of the state’s expert witness, and/or the defense can hire its own forensic chemist.

26. Raise Constitutionally-based Crawford Issues at the Trial. In New Jersey DWI drivers are routinely denied their  constitutional rights. This makes New Jersey one of the most difficult states in which to defend anyone accused of committing a DWI. New Jersey DWI cases are based on the alcohol content of your breath. The calibration of the Alcotest is very critical. Quite shockingly, a person who is accused of committing a DWI is routinely denied the right to question the witnesses who calibrate these machines. If the prosecution is based on the results of the Alcotest machine, then you are routinely denied the right to even find out what was done to calibrate the Alcotest machine!

If the DWI prosecution was a civil case, then you would have the right to depose and ask questions under oath  of anyone who had anything to do with calibrating the breath machine. At this questioning you could ascertain what manuals they relied on, and the results of whatever tests they ran. However, a DWI prosecution is a criminal case. Therefore, under New Jersey law you do not have this right! This is worth your while, since even a first time DWI conviction results in about $1,000 in fines, usually a 7-month loss of license, a surcharge of $1,000 per year for three years, and vastly increased car insurance costs in the neighborhood of $5,000 to $7,000 per year for three years. And this is true for anyone in the household, because they all have access to the car.

Unfortunately, DWI cases are conducted in Municipal Courts wherein you have no right to a jury trial. The Municipal Courts hold fast to trying to convict you within 60 days of your ticket! In 2004 the United States Supreme Court decided the seminal case of Crawford v. Washington, 541 U.S. 36 (2004). This case held that the state must produce witnesses whose written statements are “testimonial”; the state cannot use their written statements, without them testifying at trial, to prove their case. A testimonial statement is any written statement (or out of a court statement) made for the purpose of proving a fact in court. New Jersey adheres to the Crawford case when blood is drawn to see if you are under the influence of alcohol. However, the Municipal Courts do not adhere to the Crawford case when your breath is analyzed for alcohol content, at least not yet.

There is very little difference between a blood and breath analysis. The number of witnesses that the state needs to prove a breath case is much greater than proving a blood case. There is no legal difference other than this. However, this difference makes all the difference in trying a DWI case New Jersey. When selecting a lawyer to defend you, you need someone who is very familiar with the Crawford case. This is especially so when the state’s documents seem to prove that the Alcotest machine was in proper working order.

27. Weaving Inside the Lanes is Not Illegal – In many DWI cases the police also cite the DWI driver for weaving. It is very important to emphasize that weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason.

28. Anonymous Report of Drunk Driving – A vehicle cannot be stopped simply because an anonymous citizen reported that the driver was drunk.

29. Failure to Mirandize – Prosecutors may not use as evidence the statements of a defendant in custody for a DWI when the police have failed to properly issue Miranda Warnings.

30. Illegal Search – The police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence that was illegally obtained is not admissible in court.

31. Prior Inconsistent Statements by the Police - Any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used to attack that officer’s credibility.

32. Failure to Produce Dispatch Tapes - Most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. The failure to preserve such tapes upon a discovery request can cause all evidence, which could have been recorded to be suppressed.

33. Forced Blood Draws – A DWI driver cannot be forced to give blood or urine. If you were forced to do so, then these results can be suppressed. If you refuse to give blood or urine, you cannot be charged with refusal; as refusal applies to breath testing only, in NJ. In New Jersey the police may not take a blood test against the driver’s consent where there has not been an injury involved, or the result is inadmissible.

34. Draeger Certificates Have Expired – The Alcotest machine has several certificates that must be updated continually by Draeger Safety, Inc. The certificates verify that the Alcotest machine has been tested and that it is in proper working order. Quite often if you carefully review the discovery many of the Alcotest machine certificates are expired. It is important to carefully scrutinize all of the Draeger certificates to determine if they are current and have not expired. If any of the Draeger certificates are expired, then the breath results could be thrown out.