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I am one of about 20 attorneys in the country who is certified in the administration of the Alcotest and the Standardized field sobriety tests. This training is what makes me a successful DWI trial attorney. It also ensures that each time I review a NJ Driving While Intoxicated discovery packet, I know exactly what issues may result in the suppression of the Alcotest or Breathalyzer results. The machine used by New Jersey police and State Troopers is called the Alcotest. For the most part, the Breathalyzer is no longer used, but people still use that terminology. The important thing to understand is this; under most circumstance, you have no chance of winning your case unless the Alcotest readings are precluded from the evidence. This is why it is imperative that the DWI lawyer you hire is experienced and knowledgeable in this area and understands how to establish issues that could result in the State not being able to rely on those Alcotest BAC, blood alcohol level results, because this is the easiest way to convict you.
If the State can't rely on what you blew, i.e. .08. BAC, .10 BAC, .15 BAC, etc. then it can only proceed on the observations, which are the field sobriety tests, such as the HGN or pen test as people call it, the one leg stand and the walk and turn. Included in those observations are the totality of the circumstances observations such as the smell of alcohol, watery or bloodshot eyes, slurred speech, slow hand movement, admissions of drinking, an auto accident, flushed face, problems locating documents or exiting the car, sense of time, sense of location or direction. However, this is a much tougher case to prove and you have a much better chance of winning an observation case.
Additionally, for a first offense, the penalty structure is tiered, meaning different under different circumstances. For example, if the Alcotest were admissible, meaning comes into evidence, and you blew over a .10 BAC, then you would lose your license for 7 month to 1 year. If it were .15 BAC and above, the ignition interlock requirement would be imposed (not pleasant). If the BAC were .08 to .0999, then the time of driver license suspension would be 3 months. Most people blow .10 BAC and over.
Your next question should be "What if I blew .10 or over but the Alcotest readings are not admissible?" Good question! An observation offense or driving under the influence without readings can result only in a 3month loss of license for a first offense.
Here is an example of how this works. Billy is pulled over by the police. The police claim that Billy was speeding and swerving within his lane. They claim that because of this, there was a reasonable basis to pull him over. (Stop....that is a question of fact and your good DWI lawyer will look into its truthfulness. If there is a problem with the initial stop, then a probable cause issue may lead to the dismissal of the case.) Next, the police approach the car and make several observations that lead them to believe that Billy has been drinking (those observations may or may not be sufficient to get them to the field sobriety tests, has to be investigated). After that, the police ask him to step out of the car and perform some field sobriety tests (one of the most important aspects of a DWI investigation has begun.) The police have Billy step to the side of the road or in front of the dashboard camera to perform the test.
Now, Standardized Field Sobriety Tests are scientific tests, which means they were developed in a laboratory setting with the same criteria and instructions used over and over again to determine the accuracy of the tests. For this reason, the police must be held to that same standard. What most attorneys do not realize is that a complete and thorough understanding of this procedure is the difference between a trial win or loss in many instances. I can spend all day questioning officers about these tests.
If, within the totality of the circumstances, upon completion of the tests, if the officer suspects you may have been operating your car drunk, then you will be arrested. This is called probable cause. Probable cause is another question of fact, and must be closely examined to determine if a pre-trial dismissal of the charges is possible.
However, if the PC exists, then the police have the right to ask you to blow into the machine, and you have very little right to refuse without being harshly penalized, this is called refusal and the penalties upon conviction are as harsh as DWI and it is an easier case for the State to prove (there are still defenses though.) Billy blew a .16 BAC. He is facing 7 month to one year loss of license, ignition interlock for a period of suspension plus an additional year after reinstatement, $1000 per year in surcharges for 3 years, up to 48 hours in the IDRC (intoxicated driver resource center.), fines and statutory fees totaling around $1000, registration suspension, insurance surcharges, etc.
The ability to challenge the procedure leading up to that breath test and the ability to challenge the certification documents offered to show the machine was functioning properly is where a good DWI lawyer makes his money and will be in most cases the difference between a good and bad result for his client.
For example, in Billy's case, if I can establish the Alcotest was administered improperly, the machine was not functioning correctly, the certifications and calibrations were faulty (just to name a couple defenses) then the Alcotest readings will not come in. This is where the tiered penalty structure comes in. If the readings don't come in, two things happen. One, the possible penalties in Billy's case are decreased greatly, even if guilty on the observations. Those penalties are a 3 month max loss of license, no ignition interlock. But even better, we may be able to go to trial on the observations if we have a good observation defense and go for a not guilty verdict.
Alcotest readings can either be dismissed during a motion before the judge, or the state can concede there inadmissibility. The important thing to remember is that if there are no readings for a first offense, the penalties are much less and the trial is more winnable if trial is your choice.
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