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Driving
While Under The Influece:
Drunk Driving / Driving While Intoxicated
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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 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, ands
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 an
d 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 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. They must wait
at least 20 minutes and observe you to make sure that you have nothing in
your mouth. Gum, a cigarette, or a drink of water 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, which they wear
on their belts, 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
ampoule containing the test solution must be tested and used properly. These
are all things a good attorney should
know and examine the police reports for.
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 trail attorney who has tried these
cases, I fit the bill!
My philosophy is to try and win your case through motions.
Trial is a last resort. A favorable ruling on a motion can often provide
reason for the prosecutor to give a favorable plea bargain. This is my goal.
I hope that my knowledge and experience will lead to a
reasonable solution for you. There are no guarantees.
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