It’s Friday or Saturday night and you had a few drinks
with friends. You're on your way home when you see the flashing lights of a
police car in your rear view mirror. You pull over and realize you have the
odor of alcohol on your breath. In New Jersey this is a serious offense. You
could lose your driver’s license for six months to one year, two
years, or ten years. If the police Stop you within 1000 feet of a school the
penalties are even greater.
When the officer comes over to your car and he smells alcohol on your
breath, he will ask you for your license, registration, and insurance.
He will note whether you are fumbling for these documents. He will
look to See if your eyes are glassy, or bloodshot. He will watch you get out
of the vehicle to see if you stumble, hold on, or sway. He will then
give you a series of roadside tests to determine if he has probable cause to have
you come into the police station to perform a breathalyzer examination.
There are three, and only three valid physical ‘tests' which indicate
whether there is probable cause to believe you are under the influence of
alcohol. They must be given in a set protocol in order to have any validity.
The tests must be clearly explained, demonstrated, and performed on a flat
surface. They must be given between your car and the police car. You are
supposed to face away from oncoming traffic so the headlights do not
distract you. The area must be well lit.
You will be asked to perform the one leg stand, the walk and turn, and
the horizontal gaze nystagmus test. On the first you are to stand with your
arms at your side, raise one leg off the ground six inches, and hold that
position for 30 seconds. Being required to hold your head back, close your
eyes, or do the test for less time invalidates the test. The next is the
walk and turn. You are to walk on a line painted on the road, heel to toe,
forward and back a number of steps. Finally, the officer may shine a light
in your eye to see whether your pupil bounces back sooner, which it should do
if
you are drunk. However, the light must be held exactly parallel to your eyes
and at a 45 degree angle. According to the National Highway Safety
Institute, these tests must be scored. A certain score indicates only
that, with the use of all three tests, there is an 80% chance that your
blood alcohol level is over 1.0.
The police may ask you to touch your finger to your nose, to bend
over and let your arms dangle, and to insist that your heels and toes touch
when you walk. None of these "tests" have any scientific validity - they do
not indicate whether you are drunk or not. Yet the police insist on using
them.
It is important that you remember what tests you were given, because a
motion to determine whether the police have probable cause to require you to
take the breathalyzer can be filed, contested, and with the proper
representation, won. That wins the case.
If you have taken the tests, called the field sobriety tests, the police
will bring you in to take the breathalyzer (alcotest). They must wait at
least 20 minutes and observe you to make sure that you have nothing in your
mouth. Gum, a cigarette, a drink of water or a burp invalidates the
test. The 20 minutes is to insure that any alcohol in your mouth is gone and
will not affect the test.
They must give you the Breathalyzer within a reasonable time. This can be
up to four hours after they stop you. Often they wait at least an hour. This
is because in general your blood alcohol level is rising while they wait.
This fact, however, does not provide a defense in New Jersey.
You will then be asked to blow into the Breathalyzer: The police must
give you two tests within 15 minutes of each other. The tests must be within
.01 of each other otherwise they are invalid. The Breathalyzer is sensitive
to radio interference, so a police radio in the room, or a cell phone, can
invalidate the test. These are things you must look for.
There are other reasons that the Breathalyzer can be invalid. It must be
operated by a qualified operator who is properly certified to operate it. It
must be periodically tested for accuracy. The computer software must be
accurate.
The cases (DWI) are "criminal" cases. They are tried in the municipal
courts, which are criminal courts. Criminal rules apply to discovery,
burdens of proof, motions and trial. You need an experienced attorney, one
who is not only familiar with the field sobriety test and the operation of
the Breathalyzer, but one who is experienced at criminal defense. As a
certified criminal trial attorney who has tried these cases, I fit the bill!
Don't Give Up Hope!
The software used in the breathalyzer is often untested. The 20
minute waiting period is not always followed. Asthma and diabetes can
make a difference. And we may be allowed to cross examine a witness who
is personally familiar with the breathalizer/alcotest. We can see if
the machine is biased.
You need a well trained, experienced attorney who is Certified by the
Supreme Court of New Jersey as a Criminal Trial Attorney
Call Mitch Ignatoff today
at 732-356-2212. 800-400-6908 or
click here
