What will Occur if You are Stopped and Arrested for DWI in New Jersey?
Interviewer: When people are pulled over and they’re ticketed and cited for DWI in New Jersey are they usually arrested, or are they just released at that point?
Paul: No, they are first detained for further investigation through the field sobriety tests. Then, typically they are transported to a police facility for the administration of the Breathalyzer test.
Field Sobriety Tests
Interviewer: So, first when someone is pulled over for DWI in New Jersey they are probably asked a series of questions, and they have to get out of the car and do things such as follow the pen with your eyes, walk a straight line, count the alphabet, things like that?
Paul: Correct. What happens is the police cannot pull someone over just because they suspect that they are under the influence. They have to have probable cause. And that’s related to a traffic violation, and that traffic violation could be a headlight out, your tags are expired, you’re swerving, or failure to stop at a stop sign. Then upon further investigation, the officer in his or her investigation determines that the person may be under the influence of alcohol. And then that gives them the probable cause to continue the investigation through the Field Sobriety Test and the subsequent Breathalyzer test.
Interviewer: So, initially, a police officer will notice that you’re either committing a traffic offense or something’s going on and they’ll pull you over.
Paul: Right, or if it’s after midnight, they’ll probably just make something up and pull you over.
Interviewer: Then if they suspect that someone’s impaired, intoxicated, they’ll ask them to get out of the car, and they’ll do field sobriety tests, right?
Paul: Yes, that is correct.
Can You Pass the Field Sobriety Tests?
Interviewer: What happens after that, when someone does these tests, does it matter, first of all, if they pass or fail? And what will happen to them?
Paul: Well, you know, it’s extremely frustrating as a DWI lawyer to read the narrative from the officer as they describe the performance on the field sobriety tests. Studies have shown that there are a high percentage of sober individuals who fail the field sobriety test.
The other attorneys and I go to this class. And the first lessons they begin with in the morning are bringing up all the lawyers and have us perform the field sobriety test. The only thing we have in our system is coffee. And a trooper will walk down the line and say, “Okay, you failed that part. You failed this part; you failed that, you failed that.” This is because the test is challenging, and sometimes it’s not administered correctly by the police officer.
So that’s a very good point of frustration. If there’s video to corroborate the failure of the officer or trooper of administering these tests, or if the video shows a contradiction in what the officer report is that’s a good start in defending the case.
Interviewer: If you failed the field sobriety test, not only would you be arrested, but does that you’re probably going to end up guilty?
Failing the Field Sobriety Tests Will Further the Police Investigation
Paul: It’s essentially step one for the officer to establish general impairment.
In New Jersey, Breathalyzer Tests Are Usually Administered at the Police Station
Interviewer: What will happen then? Will they have you do a preliminary Breathalyzer test at the roadside, or will they take you back to the police station?
Paul: Sometimes it’s at the roadside, but most often it is not. The test will be done at the police station, because of a very big court case.
Interviewer: So the officer takes you back to the police station next, and have you do a breath test, blowing into this big ancient-looking machine?
Does Your Attorney Have Training to Correctly Interpret the Breathalyzer Readings?
Paul: Correct, and in fact, I wanted to mention that I completed the operator training course for what they call the Draeger Alcotest. Part of the court case I just referred to is called the Chun Decision.
Mr. Chun is the person who forced the state to create some standardization in the administration of the breath test. And one of the requirements was that Draeger would afford attorneys the opportunity to participate in the Alcotest Operator training course. Well, what happened was they meet the letter of the law, which is essentially that they very infrequently offer the training. It’s extremely costly, and so not many lawyers have been afforded the opportunity to be certified in it.
Interviewer: What have you learned from the training that you otherwise wouldn’t know with the breath test?
Paul: The training is that the machines are somewhat antiquated. They can have false positive results, and when there’s a human administering the test that human can make mistakes. That human cannot wait the appropriate amount of time between breath samples. They may not meet the appropriate amount of time for the observation requirements. The machine itself may not have been certified in a timely manner.