Prosecution and Defense
1. Contest the Field Sobriety Tests – There are many grounds to contest the field sobriety tests. In many DWI cases the field sobriety tests are simply not reliable. The two major proofs that the prosecutor relies on in a DWI case are the breath results, and the defendant’s performance on the field sobriety tests. The field sobriety tests are recorded on a drinking report. This is a type of a police report. The form varies for each individual Police Department. In healthy people the one legged stand is only accurate 65% of the time in predicting that a defendant’s BAC is over the .08% limit. Moreover, the walk and turn test is also only accurate 68% of the time. At your DWI trial, your DWI lawyer should strongly argue that the field sobriety tests are not reliable, and that they are inaccurate in 32% of the cases.
There are also numerous field sobriety tests that are referred to as non-standard tests. Some of these field sobriety tests have no standards of administration that police officer’s follow. These non-standard tests include the alphabet recitation test, finger-to-nose test, finger-touch test, and the sway test. These tests have no established standards of validity. All of these non-standard tests are not valid. However, at any DWI trial the police officer(s) may still testify using these tests as evidence of intoxication. The federal government (NHTSA) does not recognize these tests as credible proof that a defendant is intoxicated.
If you are arrested for a DWI, and if you have failed the field sobriety tests, then you will need to strongly contest their reliability and accuracy at your trial. It is important to keep in mind that there is a strong inertia to convict a defendant in a DWI case. When you go trial for a DWI in New Jersey you might as well wear a devil outfit and bring a pitch fork with you. Thus, you have to bring your A-game and be creative in any DWI case. There are several different areas wherein you can attack the reliability of these tests;
A. Nervousness – Getting stopped for a DWI can be a nightmare, and it can be an extremely nerve racking experience. At trial, you can allege that you were simply too nervous to understand the police officer’s instructions. Moreover, you can also argue that you were too nervous to take the tests.
It is important to note that nervousness and tiredness does not automatic mean that you were drunk when the police officer pulled you over. Sluggishness, slurred speech, failure to perform well on the field sobriety exercises can all be signs of being under the influence . However, these factors can also be signs that you were tired or nervous and this factor caused you to not excel on the field sobriety tests.
B. Lack of Coordination – The field sobriety tests are very difficult to take even if you are completely sober. The police officers really try to make you fail these tests. You really have to be in decent shape to perform these tests. A defendant can argue that he is not athletic enough or coordinated enough to adequately perform these tests. Moreover, a defendant can cite prior injuries or medical conditions that could impair his ability to adequately perform these tests.
C. Poor English – There is a major trend in the case law that the police officer(s) must advise a defendant of his legal rights in his own language. In refusal cases the police must read the DMV Article 36 Statement in Spanish if the defendant can’t speak English. A defendant simply can’t successfully perform the field sobriety tests if he does not understand the instructions. Thus, if a defendant speaks poor English then he can argue that he did not adequately complete the field sobriety tests because he could not adequately understand the instructions.
D. Complexity of instruction – The arresting police officer must also provide the defendant with instructions and a demonstration of the field sobriety tests. Quite often the police officer will “wing it” and not provide complete instructions. If you want to raise this point, then you will have to provide expert testimony to the court by a DWI Consultant.
2. Contest the stop of your vehicle – 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 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.
As a driver of a motor vehicle, you are protected by the Fourth amendment against unreasonable searches and seizures when you drive on the roadways of New Jersey. What exactly is unreasonable or reasonable has been addressed throughout the years in many Federal and New Jersey cases. These opinions are referred to as case law, and are used by New Jersey lawyers to try to convince the judges that the stop of a vehicle was illegal. Some examples of stops that might be illegal include stopping for a failure to maintain a single lane or making a wide turn when no traffic is affected, swerving within a lane, or driving under the speed limit.
If there is an illegal stop, then you may have legal grounds to file a motion to suppress with the Municipal Court. If this motion is granted, then the Municipal Court judge could “throw out” all of the observational evidence of DWI, the field sobriety results, the video tape evidence, and even the breath tests results. The evidence accrued against you after the cops illegal actions. This would include Field Sobriety Exercises, video evidence.
3. Videotapes or Dispatch Tapes – The video and/or dispatch tapes do not show that you were intoxicated. The use of a videotape in a DWI case is very common in almost all New Jersey State and local police departments. The taping of the defendant normally occurs either during the course of the roadside investigation that culminates when the defendant is arrested, or taken back to the police station. Some police departments videotape the defendant both on the highway and at the police station. Most if not all police agencies now provide videotape evidence via a DVD.
Current technology coordinates the operation of the videotape camera in the police car with the vehicle’s overhead lights. As soon as the officer switches on the lights to effect a traffic stop, the videotape unit begins to record. A computer will track the time and date on the video for future reference. The police also who use vehicle-borne videotaping system also wear a portable remote microphone so that any conversation between the officer and the defendant will be preserved on the videotape.
The videotape evidence is often crucial evidence for any DWI defendant. In some cases the defendant is videotaped performing the field tests with flying colors. Moreover, in some videotapes the DWI defendant is shown acting completely sober, being respectful to the police officer, speaking coherently, and behaving in a normal manner. If this type of videotape is played to any Municipal Court judge then it can be very probative that the defendant is not guilty of a DWI.
4. 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.
5. Challenge the breath tests – A DWI charge is a per se offense. Thus, if a defendant does not challenge a breath test result of 08% or higher, then you have no chance to beat your case. Therefore, it is critical to contest and discredit the breath tests as much as possible. There are many potential avenues to contest the Alcotest readings and they include;
a. The Aloctest is out of calibration;.
b. The BAC readings were not within acceptable tolerances;
c. There was cell phone or other types of electronic interference;
d. The police officers did not conduct a twenty minute observation of the defendant;
e. The simulator solution expired;
f. There was no two minute lock out between the BAC readings;
g. The police officer failed to change the mouthpiece between the two readings;
h. The prosecutor failed to produce foundational documents or other discovery;
i. The prosecutor failed to provide the data download discovery; and
j. The repair records reveal that the Alcotest Machine had a history of malfunctioning.
6. 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.
7. 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.
8. The Alcotest Machine Was 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.
9. 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.
10. The Officer’s Prior Record and Statements – A police officer’s prior disciplinary record can be used to challenge the his or her credibility.
11. 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.
12. 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.
13. 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.
14. 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.
15. Failure to Provide Complete Discovery–
Discovery issues are raised many times in municipal court. There may be pretrial motions to compel the production of certain documents, photographs, videotapes, and other evidence. The record should be examined carefully to determine if denial of discovery had an adverse impact on the municipal court proceedings.
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.
16. 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.
17. 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.
18. 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.
19. 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.
20. The Twenty Minute Observation Defense
The breath tests are often not reliable. The breath test results are not as reliable as the government wants you to believe. It can often read out false results on the basis of conditions like acid reflux disease, diabetes, or when a person has belched in the preceding 20 minutes. There are certain rules and regulations that local Police and NJ State Police are required to follow in order to perform Blood-Alcohol Content tests (BAC). Before a breath test is given, a driver must be watched for a 20 minute observation period to be sure the subject did not vomit, belch, touch lips, tongue, or ingest any liquid or objects. If any one of these things happen, it is possible that an inaccurate BAC reading will occur. Very often the police do not fully perform the 20-minute observation period and conduct the breath test anyway. The failure to properly conduct an observation period can also render the breath test results inadmissible in a criminal trial or driver’s license suspension hearing.
During the 20 minute observation periods, the police officer is required to sit in front of the DWI subject and watch their activities. During this period the officer is to note if the subject makes any admissions, has watery eyes, stumbles, falls down, goes to sleep, smells of liquor and anything else that may tend to incriminate them. In some instances I have seen an arresting officer state under an oath that the certified breath technician administered the observation period, while the certified breath technician will testify that the arresting officer performed the observation period. This contradiction in testimony may result in a reinstatement of driving privileges. In other instances, the officers did not perform a full 20 minute observation periods. This may also result in the reinstatement of a client’s driver’s license and may possibly result in the breath sample being excluded from a criminal prosecution.
There has always been a general scientific requirement of “observation’ period before requiring a breath test, to avoid contamination by mouth alcohol. The New Jersey State Police, who trial all officers in the state in breath testing, have qualified that as the 20-minute observation period. In any DWI case the State has the burden to prove that a police officer observed the defendant for 20 minutes before he was given the breath test.
In the landmark case State v. Chun, 194 N.J. 54 (2008), the NJ Supreme Court held that operates of the Alcotest 7110 must wait at least twenty minutes before collection a sample from a person who has been arrested in order to avoid over estimated the ratings due to the possibility of residual effects of alcoho in the mouth.
The State must affirmatively prove that a qualified witness fully observed the defendant for a full 20 minutes prior to the taking of the Alcotest. This is to ensure that the defendant does not belch or regurgitate causing alcohol to be present in the mouth which would cause an inaccurate result by the Alcotest.
The police officer of the Alcotest operation must observe the defendant for twenty minutes for permitting him to blow into the machine. It is simply not enough that the person under arrest be in police custody, perhaps int eh back of the police car in handcuffs. The proper procedure required that the defendant actually be observed by the Aloctest operate for twenty minutes to avoid any possible contamination of the breath test samples.
At any DWI trial, the State must establish by clear and convincing evidence that during the twenty minute period before the administration of the of the test, the defendant did not ingest, regurgitate or place anything in his or her mouth that could compromise the reliability of the breath test results.
The 20 minute defense is one of the best defenses available. In many cases, the defendant is arrested late at night, and the police officers are tired, and can get careless. The State Police are very well trained, and they don’t botch up the twenty minute rule. However, in the Police Departments, in the cities such as Newark, Elizabeth, Camden, Paterson, the twenty minute issue often arises. The bottom line is that in these urban areas, the police often have “bigger fish to fry” than DWI, and are trying to keep the streets safe. Moreover, in these city areas, quite often the police are understaffed. Thus, because of these dynamics they are more prone to make arrears.
21. The breath test operator was either unlicensed or had an expired license.
22. There were errors with the new Alcotest 7110 machine
23. There was a language barrier contributed to your misunderstanding of the officer when advised that you have the right to obtain an independent blood/urine test.
24. The BAC reading was contaminated by asthma spray, cough drops, paint, or fingernail polish (all of which contain alcohol).
25. You were physically forced to give a blood or urine sample.
26. The refusal charge only applies to breath testing, not to the refusal of giving blood or urine.
