New Jersey Criminal Defense Attorney Blog
Most New Jersey drivers think that there is only way way for the State to prove that someone was driving while intoxicated/driving under the influence. There are actually several ways for the State to establish its case, and drivers should be aware of each of them. What follows is a very brief description of the different methods that the State can use to support these charges:
Field Sobriety Tests – These include a series of physical tests that an arresting officer will administer at the scene. They include asking the driver to stand and touch their nose; walk on a straight line with the toe of one foot touching the heel of the other, then turning and walking again in a straight line in the same manner; or standing on one leg for a period of time. The physical movements in each of these tests are actually more complicated that those described here. Drivers should note, however, that these tests are administered in virtually every DWI traffic stop. The manner in which these tests were given may be challenged depending upon the terrain at the test site, any physical disabilities the driver may have had at the time, the manner in which the officer administered the tests including, without limitation, the nature of the instructions given to the driver, and other factors. Videos taken with a body camera or dash-mounted camera should be produced with the discovery so defense counsel can determine if there were any test-related flaws in the State’s case.
Breathalyzer – This is probably the best known test. It is administered at a police station, typically after field sobriety tests have been administered at the scene and the driver has been arrested for suspected DWI based upon their failure to complete the field sobriety tests in an acceptable manner. The driver will be instructed to blow into a tube and the breathalyzer machine will take a reading of their blood alcohol level based upon their breath. The breathalyzer may be subject to attack on several fronts. The officer administering the tests must be qualified to do so, and must be able to show that their qualifications are supported and documented by current training. The driver must sit for a period of time to allow stomach contents to settle before the test is administered. The breathalyzer machine must be in good working order, and the chemicals inserted into the machine for testing purposes must be of relatively recent vintage. In addition to the testing officer’s current credentials, the State must provide documentation concerning the machine’s functioning and repair history, and the age of the chemicals used, as part of discovery.
Blood Draw – Depending upon the circumstances, a breathalyzer may not be possible. In such cases, the officer may apply for a warrant to take a blood sample from the driver, and the blood can then be tested for blood alcohol content. The State must provide a copy of the warrant, as well as documentation concerning chain of custody of the blood sample and test results, with the discovery. The blood sample may be challenged by defense counsel if there was a problem with the testing procedure, or with the procedure used to obtain the warrant.
Drug Recognition Expert – A drug recognition expert (“DRE”) is usually an officer who has taken special training to examine and evaluate a driver to determine if they were driving while impaired by substances that cannot be detected by roadside tests, breathalyzers of blood draws. Approximately one year ago, the New Jersey Supreme Court decided that DRE testimony is sufficiently reliable to be used as evidence in a DWI case, but limited the use of a DRE’s testimony because of concerns over the methodology used by these experts. Probably the most significant limitation is that a DRE’s testimony cannot, by itself, be used to determine a driver’s guilt.
It is important to emphasize that there are ways to attack to validity of each of these testing methods. A skilled DWI attorney will know how to do so, thereby weakening the State’s case and strengthening their client’s position. Defense counsel will frequently retain an expert to review the testing methods and prepare a report attacking their validity.
DWIs can be high-stakes cases. Penalties can include license suspension, the requirement of driving for a period of time with an ignition interlock device (driver must blow into it before the car will start), significant monetary penalties and, occasionally, jailtime. Penalties increase depending on whether the underlying matter is a first, second or third offense. These cases can also impinge upon someone’s ability to operate a motor vehicle, which is basic to life in New Jersey.
Criminal defense attorney James S. Friedman, Esq., represents defendants in DWI/DUI matters in municipal courts throughout New Jersey. If you have been charged with DWI/DUI, contact Mr. Friedman to discuss your case and plan your defense.
