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NJ DWI FAQ's - Part Two

Posted by attorney Theodore Sliwinski

8. What should I do if I am asked to take field sobriety tests?

There are a wide range of field sobriety tests (FST’s). These tests include heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most police officers will use a set battery of three to five such tests.

Unlike the breath test, where a refusal to submit may have serious consequences, you are not legally required to take any FST’s. There is no possible charge such as refusal to take the FST’s. The cold hard reality is that the police officers have usually made up their minds to arrest you when they give you the FST’s. These tests are simply designed to give the prosecutor additional evidence that he will use to try to convict you. These FST tests are designed so that a DWI defendant will fail the. Thus, if you refuse to take these tests then the prosecutor will have less evidence to try to convict you.

9. Should I agree to take a breathalyzer test? What are the legal ramifications happens if I don’t?

There are three severe consequences if you refuse to submit to a breath or blood test. First, your driver’s license will be suspended for 7 months to 1 year in addition to the suspension for DWI. If this is a second offense, the suspension is for 2 years. The fact of refusal can also be introduced into evidence at trial as evidence of “consciousness of guilt." Of course, the defense is free to raise other reasons for the refusal, such as the fear of needles or the traditional offense will be charged.

10. Why did the police officer make me follow a penlight with my eyes to the left and to the right?

This is the “horizontal gaze nystagmus" test and it is a relatively recent development in DWI investigation. The police officer attempts to estimate the angle at which the eye begins to jerk . The term (“nystagmus" is medical jargon for a distinctive eye oscillation, If this occurs sooner than 45 degrees, then it theoretically indicates a blood-alcohol concentration more than .05%. The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has conclusively been proven to be subject to a number of different problems. The major flaw in this tests is that a non-medically trained police officer simply often does not have the ability to recognize nystagmus and estimate the angle of onset. Because of this flaw, and the fact that this test is not accepted by the medical community, it is not admissible in New Jersey.

11. The police officer never gave me a Miranda warnings. Can I get my DWI case dismissed based on this legal technicality?

No. The police officer is supposed to provide a Miranda warnings after he arrests you. Often, however the police officer(s) fail to do so. The only consequence is that the prosecution can’t use any of your answers as evidence. to any questions asked by the police after the arrest. Of more consequence in most cases is the failure to advise you of the state’s “implied consent" law – that is, your legal obligation to take a chemical test and the results if you refuse. This can affect the suspension of your driver’s license.

12. Can I represent myself at my own DWI trial? What can a lawyer do for me?

You can represent yourself in your own DWI case. However, this is a very stupid idea. Drunk driving is a very complex field of the law and the penalties are getting harsher each year. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing issues in every DWI case.

What can a lawyer do? An experienced DWI lawyer can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

13. What is a sentencing “enhancement"?

New Jersey law increases the punishment in drunk driving cases if certain facts exist. The most common of these enhancements is an earlier conviction for the same or a similar offense within ten years of the current offense. Other commonly DWI sentencing enhancements include:

  • A child was in the car at the time
  • The driver had a CDL and at the time was driving a commercial vehicle
  • The defendant refused to submit to a breath test
  • There was property damage or injury
  • The defendant was under 21 (“zero tolerance" laws commonly require a much lower blood-alcohol level, and impose longer license suspensions).

14. What is "mouth alcohol"?

“Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test the the BAC readings will be inaccurate and read falsely high. This result is caused the breath machine assumes that the breath is from the lungs; for complex physiological reasons, it’s internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol that is 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, hiccupping 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.

15. What are the strongest defenses in a DWI case?

The potential defenses in any given drunk driving case there almost limitless because of the complexities of DWI law. The majority of the defenses can be broken down into the following areas:

  • Driving: Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
  • Probable cause: Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
  • Miranda: Incriminating statements may be suppressed if warnings were not given at the appropriate time.
  • “Under the influence": The officer’s observations and opinions as to intoxication can be questioned. The circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as “failing". Also, witnesses can testify that you appeared to be sober.
  • 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.
  • Testing during the absorptive phase: The blood, breath or urine test will be unreliable if performed while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking “one for the road" can cause inaccurate test results.
  • Regulation of blood-alcohol testing: The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.

16.Will a defendant be sentenced to jail if he is convicted of a DWI?

On a first time DWI offense most defendants will not be sentenced to any jail time. If the defendant has a high BAC reading, then the some judges may impose some community service, and he may also impose a stiffer fine. On a second or later DWI offense then the chances of being receiving a jail term increase significantly. However, an experienced lawyer can usually find a way to keep a DWI defendant out of jail for a second or the third offense. In most cases the judge will not sentence the defendant to a jail term for a DWI second offense. The court will order the defendant to comes to the Municipal Court on numerous days and watch the court proceedings. Each day the defendant sits in at court will constitute as one day in jail.

For a third time DWI offense the defendant must receive a mandatory 6 month jail term. There is a 90-day stip for this six-month term. In simpler terms, the DWI defendant must serve 90 days in the County Jail. However, 90 days of the jail sentence can be served by performing community service, or by enrolling into a rehab program.

Additional resources provided by the author

New Jersey DWI Center

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