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New Jersey DWI Rights

Of all the Amendments in the Bill of Rights, I believe the Fourth Amendment to be the most important. The amendment reads as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment applies to motor vehicle and their occupants. As such, it is very important to understand your rights when stopped by a police officer.

First and foremost, police officers may stop someone when they have reasonable and articulable suspicion that a violation of law has or is occurring.[1]This is defined as something more than a hunch, but less than probable cause. As such, police may always stop a motorist for motor vehicle violation and vehicle equipment violation. DWI Checkpoints and roadblocks are also seizures under the Fourth Amendment,[2] and are constitutional under the New Jersey State Constitution if certain requirements are met. http://njdwiesq.wpengine.com/dwi-checkpoint/.[3]Police may also stop a vehicle when they believe that there may be something wrong with the driver or vehicle, even though no violation of law has occurred. This is called community caretaking. Of course once a vehicle has been stopped the duration must be reasonable.

Once the vehicle has been lawfully stopped, the police might make certain observations, which might lead him to believe the motorist is impaired. The most common signs are often an odor of an alcoholic beverage and fumbling hands while retrieving credentials. These signs will often lead and officer to start questioning the driver as to whether he or she has consumed any alcoholic beverages. It is important to not that the Fifth Amendment Right against self-incrimination does not apply here. Therefore, a police officer does not need to read a motorist his Miranda rights before questioning him. However, New Jersey has a common-law right to be free from self-incrimination, which prohibits courts from applying an adverse inference or “consciousness of guilt” standard for those who do not answer police questions prior to arrest. [4] Other observations the officer might make are water and blood shot eyes, flushed face, and slurred speech. Based on these observations the officer will probably ask someone to perform field sobriety tests to determine whether someone is impaired and unable to safely operate a motor vehicle. In order to request someone to perform these tests, a police officer must have reasonable and articulable suspicion that the driver is impaired. [5] A driver is under NO OBLIGATION, to perform these tests. However, refusal will most certainly result in an arrest. However, many people have also been arrested upon successful performance of field sobriety testing.

The most common field sobriety tests administered are the Horizontal Gaze Nystagmus (HGN)(the eye test), Walk and Turn (walk the line), and One Leg Stand (stand on one foot). New Jersey case law prohibits use of HGN to prove impairment without expert testimony. However, the courts have been vague on whether it may be used to form probable cause to arrest. Once field sobriety tests are performed the officer will make an assessment as to whether he has probable cause to put a person under arrest.

Challenging The Observations

It is the job of the defense lawyer to challenge or minimize the State’s evidence, including the evidence of the motor vehicle violation, request to perform field sobriety tests, and whether the totality of the circumstances would lead a reasonable person to believe that probable cause exists to subject the driver to arrest.

Driving Conduct: According to the National Highway Traffic Safety Administration, there are 24 clues of impaired driving. The very manual used to train police officers, called DUI Detection and Standardized Field Sobriety Testing, identifies these clues in detail. It is important to note that the most common moving violation, speeding, is not one of them.

Watery and bloodshot eyes: In the NHTSA study, “The Detection if DWI as BAC’s below 0.10” DOTHS 808 654 (Stuster, September, 1997), it was revealed that watery and bloodshot eyes be taken of the list of indicator of impairment because such signs could easily be caused by other factors such as allergies and work conditions.

Odor of Alcoholic Beverage: It is completely legal to consume alcoholic beverages. No officer can tell, by the odor alone, how much a person has consumed. As such, in New Jersey, the odor alone would not be enough to ask a driver to step from the car to perform field sobriety tests or to arrest.

Field Sobriety Testing: First and foremost, each test has proscribed instructions, which must be explained to the test subject. Secondly, each test (except HGN) must be properly demonstrated to the test subject. The officers are trained to look for cues of impairment. However, officers often count things, such as counting out loud, which are not clue against the test subject which could make a passing score a failing one.Further, some clues are miscounted or improperly double counted. Finally,there are certain people who cannot do the field sobriety tests, such as people with back, foot, leg, or inner ear problems, people over 65, and people 50 or more pounds over weight. Weather conditions could also have an impact. According to the NHTSA, field sobriety tests are to be demonstrated and administered in a proscribed manner. Failure to do so comprises their validity.

Suppressing Bad Evidence

If, after researching the case it is revealed that the State lacked sufficient evidence to stop you, ask you to perform field sobriety tests, and/or arrest you, a good lawyer will file what is known as a Motion to Suppress. The Municipal Court Judge in the town where you were stopped will hear this motion. If the court agrees that you were subject to an unreasonable seizure, then everything that comes from that seizure must be suppressed and may not be used against you. This could lead to the charges being dismissed.

Hiring The Right Lawyer

To be able to effectively challenge he validity of the stop, the observations made by the police officer, and the arrest, it is important to hire an attorney who has been properly trained in these police procedures. This type of training is not taught in Law Schools or generally offered by Courts or Bar Associations.

Steven W. Hernandez has been extensive training in police DWI stop and arrest procedures:

He has taken the DWI Detection and Standardized Field Sobriety Testing course the police officers take and has been trained as an Instructor in these same tests under the same guidelines set out by the National Highway Traffic Safety Administration and the International Association of Chiefs of Police.

He was the first lawyer in New Jersey to receive his Forensic Sobriety Assessment Certificate. He has taken the Advanced Roadside Impaired Driving Enforcement (ARIDE) training course, which is the prerequisite to becoming a Drug Recognition Expert (DRE). He has undergone and completed the DRE overview course.

[1] Terry v. Ohio, 392 U.S. 1 (1968).
[2]Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).
[3] State v. Kirk, 202 N.J. Super. 28 (App. Div. 1985).
[4] State v. Stas.
[5] State v. Bernokeitz