DWI Defense Strategy

When it comes to DWI defense, there are many factors to consider when building a strong defense. Was your arrest the result of a DWI roadblock? Did the arresting officer follow proper procedures when conducting the DWI stop? Was there a legitimate reason to initiate the traffic stop in the first place? Find out how to defend yourself against a New Jersey DWI here.

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 bloodshot 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. 


New Jersey DWI Right to Remain Silent

We have all heard this. That is why it is shocking why not enough people use this right. If you are stopped for a DWI or any other investigation for that matter, you have the legal right to keep quiet. No matter how aggressive the office is and how innocent the question sounds, you can choose to remain silent.

Many times people try to talk their way out of trouble. It does not work. You will only end up saying something that makes matters worse or saying something that the cop may misconstrue against you.

New Jersey DWI Arrest Checklist

There are numerous things that you should try to keep in mind with respect to your DWI arrest and all related events that took place at that time. Once you have obtained the services of a skilled New Jersey DWI lawyer, he or she will ask you to remember certain events. Therefore, being able to recall your experience fully may prove to be very helpful to your case.

For example, your attorney will want to know whether or not your vehicle was searched. If it was searched, was anything found at the time of the search? Also, it is important for you to recall at what stage the officer told you that you were actually under arrest, whether you made any admissions, and whether or not you were read your Miranda rights. Additionally, your attorney will want to know if a video or audiotape of the stop was made, as well as whether or not you waived your Miranda rights, remained silent, or asked for a lawyer at the time.

Your lawyer may also ask you to recall certain things about your health at the time of the stop. For instance, how much sleep did you have the previous two days before you were stopped? Are you on any medications, and if so, had you taken any recently? Your attorney may also ask about your physical condition, such as whether or not you have any physical disabilities or any balance problems.

With respect to the Alcotest breath test that you were given, your attorney will undoubtedly have many questions about the test itself. For example, how many breath samples did you provide to the officer? Did the officer interrupt your breathing pattern at any time during the test? Were you observed for the required amount of time? Did the officer change mouth pieces between blows; and were all cell phones and radios removed from the room?

New Jersey DWI Cases

There are a number of ways to challenge a DWI charge. Just because you have been charged, does not mean it is an open-and-shut case. The government still needs to prove many aspects of your case beyond a reasonable doubt. However, these strategies should only be used by a highly trained DWI attorney who has the legal and scientific knowledge needed to fully understand these issues.

Here are some of the strategies an attorney may use:

Fight the Traffic Stop

In order to stop a driver, an officer must be able to articulate that a specific traffic violation had been committed, and that the stop was not just based on a “hunch.” If the traffic stop is found to be bogus, any evidence obtained as a result can be thrown out and the charges likely dropped.

Proving Impairment

The government has to proved that you were impaired. If it is show that you were not impaired at the time, this could be a way to win the case.

Fight the Field Sobriety Tests

Only three field sobriety tests are approved by the National Highway Traffic Safety Administration (NHTSA) – Horizontal Gaze Nystagmus, the Walk-and-Turn and the One-Leg Stand. Any other test have not undergone validity testing and are this suspect. Also a condition – such as illness, injury (even an old one), obesity, footwear, or weather – may have prevented you from performing the tests accurately. There is ample scientific evidence showing the limitations of these tests.

Problem with the Breath Test

When attacking the breath test result, the reliability of the reading can depend on many factors. The first is whether the police followed the specific procedures in operating the machine, such as observing the subject for twenty-minutes prior to the breath test to make sure the sample is free from contamination. A breath test can be contaminated by throwing-up, burping, coughing, putting things in your mouth, having something in your mouth, etc., including some dental appliances, like dentures, and perhaps tongue rings. Another are to attack is whether the machine was in proper working order. Finally, certain medical and dental conditions can affect a breath test and need to be explored.

Bad Laboratory Processes

For blood and breath tests, there are many specific procedures the police must follow. They must prove the chain of custody, specimen integrity, that they followed proper collection and testing procedures and that the machine was working and maintained properly.The best strategy you can use is to hire an attorney who is highly knowledgeable in these areas of law and science. Someone with knowledge and experience.

New Jersey DWI Trials

In New Jersey, DWI is treated as a municipal offense and therefore is heard at a municipal court before a judge, there is no jury. Despite the fact that a DWI can tie you down with some very severe penalties, your fate will be decide by a single person.

Some attorneys in the area use this as an excuse to take the easy way out by and pleaing guilty. They never have the intent to take the case to trial.

My philosophy is very different and has helped me get successful outcomes for my clients. My default position is to take the case to trial because I have found a number of advantages in this approach:

1. Taking the case to trial may result in a “not guilty” verdict. This type of outcome would not be possible if you plead guilty early on in the process.

2.Taking the case to trial allows you to take a critical look at the evidence and see how strong it is. There are many ways to challenge the evidence in a DWI case and if one is stressful in challenging a key piece of evidence, the entire case can fall apart quickly after that.

4. Even if you lose the trial, you have the opportunity to appeal the case to a higher case if there is an issue you feel needs to be reviewed.

If you are serious about defending your rights, you should search for a lawyer who regularly takes cases to trial and has the knowledge and reputation to protect you.

New Jersey DWI Trial Cross Examination

When it comes to conducting a cross-examination at trial, veteran DWI attorneys understand that cross-examination has a specific function. They do not simply attack the witness on all fronts under the premise that a point might be scored at some time during the process. Some attorneys in the area use this as an excuse to take the easy way out by and pleading guilty. They never have the intent to take the case to trial. My philosophy is very different and has helped me get successful outcomes for my clients. My default position is to take the case to trial because I have found a number of advantages in this approach:

Establishing Witness Acknowledgements

A competent New Jersey DWI lawyer will show, ahead of time, the point or points that he or she would like to make at trial. The attorney will also be able to get certain acknowledgements from all witnesses that he or she decides to cross-examine and will ensure that those acknowledgements are consistent with the points that were made during the opening statement, as well as with the arguments that are going to be made during closing arguments.

Cross Examination in Action

For example, let’s say that a DWI defendant refused to participate in a field sobriety test. During the attorney’s cross-examination of the arresting officer, he or she might decide to focus on that point and attempt to get a relevant acknowledgement of such from the officer. Throughout the examination of the officer, apprehension and panic can be raised as reasons why a reasonable person would not want to take part in such unusual balancing and coordination tests, and that the defendant experienced those exact same reasonable emotions when he or she decided not to take the test.

New Jersey DWI Defense

While the specifics may vary from case to case, experienced New Jersey DWI attorneys will usually begin constructing a defense for their client by looking at a few important and time-sensitive factors.

Chief among these is the presence of any witnesses to your alleged driving while intoxicated. The state needs to prove that you were indeed the one driving the vehicle in order to convict you of DWI. Your New Jersey DWI attorney must make it a priority to interview any witness who claims to have seen you driving, as their testimony may shape your defense.

The second major factor is your statements to the police upon your DWI arrest. Your DWI attorney will likely need you to recount everything you said to the police officer upon your arrest, especially anything that could be construed as an admission of guilt. This includes anything you might have said about what you drank and whether or not you were drinking.

Finally, your medical condition may also factor into your DWI defense. Specifically, your DWI attorney needs to be aware of any medical conditions you may have that may produce symptoms similar to those caused by intoxication. These conditions could be permanent, such as disabilities that would affect your balance, or they could be temporary, such as a lack of sleep the night before your arrest. These conditions can result in false positives in field sobriety tests.

An experienced New Jersey DWI attorney will know to look at these factors and build you the strongest possible defense using them.

Defending Against NJ DWI Checkpoints

We’ve all dealt with them. You are out late, eager to get home to a warm shower and then bed, when suddenly, just up the street, you see the flashing lights of squad cars that can mean only one thing: a sobriety checkpoint. These are often placed in such a way that you can’t turn around. And what can begin as an annoyance can lead to disaster if you test positive for DWI.

An experienced New Jersey DWI lawyer will use a two-step approach in countering the use of the checkpoint in your case. The first consideration is whether the roadblock was the only reason for your being stopped. The arresting officer may have, for instance, seen that you had a burned out headlight and used this as a reason to detain you. The officer may also have waved you over because you allegedly made an improper lane change. Your lawyer will explore this first step in order to gain the concession that the only reason for the stop was the checkpoint.

The second step your DWI lawyer will take is to evaluate the constitutionality of the roadblock. Many jurisdictions require, for instance, prior notice that a checkpoint will be set up at the location; they may also require that signs indicating a checkpoint is ahead are placed in an area allowing for a person to take a detour. The way the checkpoint is operated may also be considered. Questions you may have been asked prior to taking a field sobriety test, for example, may be taken into consideration.

Defenses to Signs of Intoxication in a NJ DWI Stop

After establishing reasonable articulable suspicion to pull a driver over, police must identify certain signs of intoxication in order to begin a DWI investigation and ultimately arrest someone.

Some of the common “clues” of intoxication include:Plausible Reason
Watery or Bloodshot EyesAllergies
Fumbling for your license or registrationYou were nervous
Slurred SpeechHow does the officer know how you normally speak?
Odor of AlcoholOdors can linger for hours after consumption

Defending Against Subjective Evidence

To say that there is a one-size-fits-all approach to determining intoxication would be wrong. Alcohol does not affect any two people in the same way. What’s more, the signs of intoxication that police are looking for are often subjective. Your defense attorney should work to determine if there are any explanations for what you allegedly did: your driving conduct, performance on the field sobriety tests, and your general demeanor.

New Jersey DWI Police Mistakes

There is a common misconception out there that a DWI charge is an automatic conviction. This couldn’t be further from the truth in my experience in defending DWI cases in Toms River and the rest of New Jersey.

I have found some common mistakes that are made in DWI cases, such as:
Breath MachineNot Calibrated ProperlyNo Probable Cause for the Traffic Stop
Field Sobreity Tests Not Done According to ProceduresOfficer Made Incorrect Assumptions
Some Other Substance in the Body Triggered a Positive Breath TestBlood Testing Samples Were Mishandled
Blood Testing Equipment Was Not Calibrated or Working ProperlyBlood Testing Equipment Was Not Calibrated or Working Properly
Officer Misinterpreted Medical Condition as Being DrunkDriver is Taking Prescribed Medication Officer Charges them

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 prescribed 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 overweight. 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.

Proper Training is Vital to a Strong Defense

To be able to effectively challenge the 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.