WHAT YOU SHOULD KNOW IF YOU HAVE BEEN CHARGED WITH DWI IN NEW JERSEY
Our firm receives many calls each week from individuals recently charged with DWI in New Jersey. The trauma of being arrested is typically still fresh so emotions are usually high. A wide range of feelings are expressed in our conversations including anger, frustration, fear and even defeat. As a firm that has been at the forefront of DWI defense in the state for more than two decades, we certainly understand the seriousness of being arrested and charged with violating N.J.S.A. 39:4-50. It is important at this point that you organize your thoughts so that you can appreciate what is critical to effectively defending your NJ DWI/DUI charge.
TRAINING & EXPERIENCE ARE PIVOTAL IF YOU WANT TO BEAT YOUR DWI OFFENSE
Driving while intoxicated and under the influence of drugs is one of a few areas of law where prosecutors are prohibited from using plea bargaining to downgrade a charge. Municipal prosecutors are obligated to comply with the Guidelines for Plea Agreements in Municipal Court issued by the New Jersey Supreme Court. Guideline 4 provides that “no plea agreements whatsoever will be allowed in drunken driving”. What this means is that the only way a case can be dismissed and the mandatory penalties for DWI avoided is for your lawyer to persuade the court that there is a legitimate issue which prevents the police from proving the violation.
Given the restrictions for resolving a DWI charge, political favor or perceived coziness with the prosecutor or judge are non-factors in securing a dismissal. Training in drunk driving defense, as well as experience defending these violations, are going to be the key ingredients if you want the best opportunity to dismiss a 39:4-50 offense. The team at Marshall DWI / DUI Lawyers have over 200 years of experience defending DWI & DUI charges throughout the state and several of those on our staff are former municipal prosecutors who have handled thousands of these cases over the years. The training of the attorneys at the firm is likewise formidable with three who are among a group of less than ten statewide who are certified on the Draeger Alcotest 7110 Evidential and also as instructors in Standardized Field Sobriety Testing.
WAYS THAT A SKILLED DUI LAWYER CAN HELP YOU
There are numerous avenues of attack that a skilled DWI lawyer like those at our firm will pursue in order to beat the charge. The existence of such an issue is, as previously stated, the only way that a municipal court judge can relieve a motorist from the fines, license suspension, surcharges, jail and other penalties set forth by law. The following are the primary areas of focus to escape a conviction:
Lack of Proper Basis for the Initial Motor Vehicle Stop. In order for the police and prosecutor to prove you guilty of DWI, they must demonstrate that there was a valid basis for the motor vehicle traffic stop. In order for a warrantless stop to constitutionally acceptable, the police officer must have “an articulable and reasonable suspicion that the driver has committed a motor vehicle violation.”
State v. Locurto, 157 N.J. 463, 470–71, 724 A.2d 234 (1999).
The gist of this standard is a requirement that law enforcement identify some provision of the New Jersey Motor Vehicle Code which the officer reasonably concluded was violated. A stop made under circumstances that are not objectively reasonable is invalid and so too is an arrest for DWI that follows. Our attorneys hone in on the facts and circumstances of every stop to dismantle a case.
Inability to Prove Operation. An element of every DUI case is operation of a car, truck, motorcycle or other form of motor vehicle. There are four components to “operation” which must exist including control of the motor vehicle, an intent to cause it to move, conduct to set it in motion and the possibility of the motor vehicle being set into motion. Proof is typically provided through direct evidence such as observation by a police officer or videotape. The second way that the state can attempt to establish operation is through circumstantial evidence, for example, finding the defendant at the scene of an automobile collision or passed out behind the wheel. The final way operation can be proven is through admission by the accused.
A common factual scenario where an operation issue arises is where the police have no direct evidence or admissions but find the defendant sleeping in his or her car. The focus in these cases is often on whether or not the keys were in the ignition although the law is clear that this fact is not determination in terms of operation. It is simply one piece of evidence rather than conclusive, something which our NJ DWI Lawyers can often redirect during the course of a case.
Failure to Demonstrate a Valid Basis to Arrest the Accused. Once police come into contact with a motorist, they can only make an arrest for DUI if there is probable cause. “Probable cause” means a well-grounded suspicion that driving while intoxicated has occurred. There must be something more than mere suspicion of guilt for this threshold to be reached.
Probable cause to arrest is customarily demonstrated through roadside observations, admissions of the accused and performance of field sobriety tests. When the encounter involves a fall-down situation that is one thing but the vast majority of cases handled by our lawyers involves much less than this is terms of incriminating evidence. The more common scenarios is a “two drinks” or “I had a few” situation. Whether the arrest was proper therefore turns on the results of the field sobriety testing more times than not.
The
National Highway Traffic Safety Administration (“NHTSA”) has adopted four tests which must be administered and scored properly in order to be valid. The tests include the horizontal gaze and nystagmus test, the walk and turn, the one leg stand and ABCs. The attorneys at our firm have the most thorough training you can secure through the the NHTSA. This allows us to undertake a potent cross-examination to invalid an arrest.
Lack of Reliable Scientific Evidence. It is a per se violation of 39:4-50 to operate a motor vehicle with a blood alcohol concentration (“BAC”) of .08%. Prosecutors use a breath test result or blood test to establish BAC. Both are referred to as scientific evidence of intoxication. The state can establish guilt by producing an admissible BAC result using either device.
The current breathalyzer utilized in New Jersey is the Draeger Alcotest. There are approximately fifty lawyers statewide who certified on this machine, meaning that they have more training in operation of this breathalyzer than most police. Five of these individual are at our firm.
The other mechanism scientifically to prove a BAC of .08% or higher is through blood. Litigants often believe that this evidence is the strongest but, in practice, tends to be weaker in terms of defense. There is a stiff protocol for securing the sample, chain of custody, testing and discovery, which translates into many potential avenues for
suppression of the blood evidence by a lawyer at The Law Offices of Jonathan F. Marshall.
Failure to Provide Required Discovery. There are many documents and other pieces of evidence, including video and audio, that the police and prosecutor are obligated to produce if aggressively pressed by a DWI defense attorney. This is a major factor why cases handled by our office tend to take many months to fully litigate rather than being resolved in accordance with the 60 Day Directive Issued by the Supreme Court. The truth is that while many lawyers resolve cases within 60 days of issuances of a DWI summonses/ticket, our experience is that it is virtually impossible to secure all of the required discovery from police within this time period. Commitment to obtaining all relevant discovery is one of the cornerstones of a DWI specialist’s defense and something that we pursue without exception.
Failure to Conduct a Speedy Trial. A motorist charged with driving while intoxicated has a right to a speedy trial under the
Sixth Amendment to the Constitution. There is no pinpoint when a case automatically reaches the limit and whether this right has been violated turns of the facts of a particular case. Four factors are considered in determining whether there has been a violation of a defendant’s right to a speedy trial: (1) length of delay; (2) reason for the delay; (3) defendant’s assertion of this right; and (4) prejudice to the defendant.
COMMON MISTAKES THAT CAN COMPROMISE YOUR CHANCES OF WINNING A DWI CASE
There are several common mistakes made by individuals charged with DWI in New Jersey. You definitely should avoid making these if you want to have the best chance of obtaining a dismissal of your driving while intoxicated or driving under the influence of drugs case.
- Hiring the Cheapest Attorney and expecting him to invest the time necessary to successfully represent you.
- Choosing a Lawyer Based on Where His Office is Located. Given that there is no plea bargaining in a DWI case, there is no room for political driven results without a prosecutor and judge risking indictment. Success hinges on an effective defense so your quest needs to be finding the best NJ DWI defense lawyer you can find as opposed to a guy that dabbles in this area of law and happens to be located closest to the court.
- Assuming Every Lawyer Is the Same. Just like every other profession, lawyers common in different types and levels of experience. It is therefore illogical to think that any attorney can defend your charges and you can expect the same outcome. This thinking is particularly dangerous in DWI defense since beating the violation often comes down to knowledge and skill in this area of law.
- Being impatient about resolving your DUI charge. Favorable outcomes rarely come quickly since many of the most potent defenses take time to develop. A litigant can seriously compromise his outcome by being unwilling to invest the time necessary to see a case through. We are often the ones with the most patience despite being retained on a fixed fee basis and this is because our mission is securing the optimum outcome available.
- Attempting to handle your DWI Offense Without an Attorney. Walking into court without an attorney is probably one of the more foolish mistakes an individual charged with DWI can do to hurt his/her chances of avoiding a conviction. Drunk driving defense is very technical with heavy penalties if you fail to successfully defend the charge. It is not a matter to handle without a skilled DUI attorney.
