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- Gabriel V.

Monmouth County DWI FAQ

What Defenses Can Be Raised In Response To New Jersey DWI Charges?

Our strategy for your case will depend upon your unique circumstances. We will fully review the evidence to determine the best defensive strategy, given what happened. Let's look at a few of the most common defenses we could potentially employ on your behalf. If we succeed in our defense, we may be able to get charges dismissed or increase the odds of an acquittal. At a minimum, we'll do our utmost to minimize the severity of any consequences you could face as a result of a worst-case-scenario conviction.

Illegal Stop

Police cannot stop you for "any old reason." Instead, they need reasonable suspicion that you are committing a crime before they can engage in a lawful stop. This reasonable suspicion must be supported with clearly articulable facts. For example, swerving over the center line is reasonable suspicion that you've been drinking, so the police can stop you. Seeing you get into a car holding a beer can may also inspire reasonable suspicion.

However, just a guess that you "look like a criminal" is not enough. Police also can't racially profile people as an excuse to stop them. When police lack reasonable suspicion to make a stop, they are violating the rights of the driver they've pulled over. If you were the victim of an illegal stop, we'll aggressively advocate on behalf of your rights.

Arrest Without Probable Cause

Police need probable cause that you have broken the law before they can lawfully choose to arrest you. Typically, police will ask you to perform field sobriety tests to gauge whether you are intoxicated. Depending on your performance, they can arrest you and take you to the police station. In other situations, police might arrest you if they find drugs in your possession.

If the arresting officer didn't have probable cause, your arrest was illegal. We will ask for a judge to dismiss the case. Probable cause is subjective, however, so judges might hesitate. Still, an experienced lawyer from our firm can make the strongest possible arguments on your behalf.

No Intoxication

The state must also prove that you were intoxicated before it can secure a conviction. If you didn't take a chemical test, the state must rely on the subjective testimony of the police officer. We might use other evidence—like dashcam footage—to show you didn't appear intoxicated. The state must prove you were intoxicated "beyond a reasonable doubt"—a very high standard. If we can create doubt, then we can win your case.

If you took a chemical test and failed it, you might fear that your case is open and shut. Know that we can still challenge certain tests:

  • If police took a blood sample, we might argue it was an unreasonable and unconstitutional search. For example, they might not have gotten a search warrant or failed to offer a breath test as an alternative. If a judge agrees that the draw was unreasonable, the evidence can be suppressed.
  • If you took the Alcotest breath test, police must follow certain procedures. For example, they need to remove electronic devices from the room. You also should be monitored for 20 minutes before taking the test. If the officer fails to take these steps, we can challenge the Alcotest result.
  • With an Alcotest, we might also argue the machine was not calibrated properly or that it malfunctioned. Test results are only as reliable as the machine that analyzes the chemical in question.
Not Operating The Vehicle

You cannot be convicted of DWI charges if you weren't operating a vehicle. Admittedly, New Jersey law really stretches the meaning of "operating." Some people have faced DWI charges for being asleep in the backseat while intoxicated. Others have faced charges for standing outside the car with keys in their hands.

Nonetheless, you might have a defense if someone else was driving. All we need to do is create reasonable doubt that you weren't behind the wheel. For example, the police might show up at the scene of an accident and find you drunk. But if all the passengers were standing outside the car when the officer arrived, it's not obvious that you were the one driving.

Discovery Violations

The prosecutor needs to turn over evidence as part of the discovery process. If they intentionally refuse to do so, or if they hide evidence that might help you, we can ask a judge to dismiss the charges. Discovery violations are serious and undermine the integrity of the court system. We aren't afraid to ask a judge for a dismissal for serious, bad faith violations.

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What Evidence May Be Helpful For My New Jersey DWI Case?

Night Highway We often rely on the following evidence to fully understand what happened in any given case:

  • Police videos. Many cruisers have a camera installed on the dash. Officers should also have body cameras. We will request this evidence to review. The video might show you balanced on one foot for a full minute and not looking drunk at all. Or, it might show that your car wasn't swerving, which was the reason the officer allegedly used to justify stopping you.
  • Police reports. The report should contain helpful information about the arrest, such as the reason you were stopped in the first place.
  • Test results. If you took the Alcotest or another chemical test, we want to know the results.
  • Witness testimony. Did you have someone in the car with you? They may be able to provide helpful testimony concerning what happened during the police encounter and whether you were drinking.
  • Receipts. Police might have arrested you after you left a restaurant. Your receipt might show you didn't buy any alcohol with your meal.

Meet with a New Jersey DWI attorney to review what evidence could be helpful in building your defense if you're facing criminal charges. Call 732-784-2880 or connect with us online to schedule a consultation with Tara Breslow-Testa and Associates today.

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Are Field Sobriety Tests Reliable?

Not at all. Of course, prosecutors swear by the reliability of these tests, and magistrates almost always let officers testify about how allegedly impaired drivers perform. Officers rely on field sobriety tests to establish probable cause for an arrest. If they don't have chemical test results, these tests might be the only evidence they have to justify why they chose to arrest someone in the first place.

There are valid reasons you might have "failed" a field sobriety test that have nothing to do with being intoxicated. Let's look at the three most common tests.

HGN Test

This is an eye test—the Horizontal Gaze Nystagmus. An officer might hold a pencil or their finger 15 inches away from your face and move it back and forth. Alcohol and some drugs impair a person's ability to control their eye muscles, so your eye might jerk or "bounce" as you try to follow the pen or finger.

Valid reasons you failed: Your eye might jerk or bounce due to bright traffic lights moving in and out of your vision, or you might have a medical condition that causes a problem.

Walk And Turn Test

This test requires you to walk nine steps, turn, and then walk back. You'll walk heel to toe and probably count at the same time. If you are "shaky" or can't walk in a straight line, then the officer might assume you are drunk.

Valid reasons to fail: You're nervous. You're walking on the highway with traffic whizzing by. It's late at night and you're tired. You're nervous because your friends in the car are watching you. There are countless reasons you could fail this test while sober.

One Leg Stand

This test requires that you lift a foot and balance on one leg, counting at the same time. If you have to put your foot down or you fall over, the police will probably assume that you're intoxicated.

Valid reasons you failed: It's hard to balance on one foot, even when sober. Try it in your living room. It might be freezing cold, you might be tired or nervous, or you could wear uncomfortable shoes. There are countless reasons why perfectly sober people can't balance on one foot.

Furthermore, field sobriety tests rely on the subjective assessment of an officer. Balance on one foot for 20 seconds? Well, the officer might think that's not long enough, or you were too "shaky" while doing it. Very few people "pass" a field sobriety test, and we can offer reasons that show why you allegedly failed.

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Can I Be Charged With A DWI If My BAC Is Below 0.08%?

Perhaps. If you are a minor, you can face an underage DWI for having even a trace of alcohol.

You can also be convicted of DWI even with a low BAC. The law only requires that you be "under the influence." This standard doesn't require a certain BAC level. In New Jersey, this is called an "observational case,"—meaning the officer observed that you were unable to drive safely. For this reason, you can be convicted of DWI and face penalties even if you have a BAC below the legal limit.

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What Charges Will I Face If I Got Into An Accident While Intoxicated?

This is a nightmare scenario. New Jersey's assault law contains a special provision for assault by auto. It is a crime of the fourth degree if you cause bodily injury and are intoxicated at the time that you cause that harm. If someone suffers serious bodily injury, this offense is classified as a crime of the third degree.

The penalties associated with assault by auto are very serious and include up to 18 months in prison for a fourth-degree crime conviction. A third-degree crime conviction can send you to prison for 3-5 years.

If you injure someone on school property or in a school crosswalk, your criminal charges may be increased a level. This means that if you cause bodily injury while in a school zone, you'll face third-degree charges. If you cause serious bodily injuries, you'll face second-degree charges, which potentially means 5-10 years in prison.

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What If Someone Died While I Was Drunk Driving?

You could face felony charges as a result of the fatality. This is a crime of the second degree, which means you are looking at 5-10 years in prison and a maximum $150,000 fine. You also won't be eligible for probation.

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Can I Be Convicted Of DWI If I Was Driving Safely?

Yes. Some people claim they aren't impaired when driving with a BAC over the legal limit, usually because they drink a lot of alcohol and have built up a tolerance. And that may be true. However, the law only requires that you have a BAC over the limit. If you do, it doesn't matter if you were driving safely. This might sound unfair, but it is the law in the Garden State.

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My Friend Beat A DWI Charge, Can I?

It depends on the facts. Your case might be different than your friend's. No two DWI cases are alike, so we can't say for sure.

For example, your friend might have had a different prosecutor who wasn't confident that your friend had smoked marijuana before driving. Maybe no chemical test was done, and your friend didn't make any incriminating statements. That situation could be 180 degrees different than your own if you took the Alcotest and blew a 0.15% BAC.

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Do I Really Need An Attorney For My New Jersey DWI?

You do. We realize that some people are tempted to handle their own DWI defense. Nevertheless, an experienced New Jersey DWI lawyer provides valuable benefits:

  • We can fully analyze all evidence, including chemical test results. Few members of the public really understand what can go wrong with these tests.
  • We can ensure the police followed correct procedures when gathering evidence. If they didn't, we can strengthen your defense.
  • At trial, we can cross-examine the police officer who stopped you. We might cast doubt on his observations that you were driving erratically. In this way, we might show the stop or arrest was illegal.
  • We can highlight reasonable doubt in the minds of the magistrate hearing the case.

When you add up the costs of a DWI—surcharges, fines, fees, and missed work—people can lose over $5,000 easily. It makes sense to meet with a lawyer to review whether you can fight the charge.

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What's The First Thing I Should Do When Arrested?

When the police pull you over, they'll probably ask you to tell them your name and ask to see your license, registration, and insurance. You have to comply with these requests. Give your name and hand over the requested documents.

However, your obligation to talk ends there. You don't have to answer any other questions. An officer will usually ask if you were drinking, where you've been, where you're going, and so forth. You don't have to answer.

Instead, stay silent. You can even say, "I don't want to answer that."

If arrested, ask to speak with an attorney. This should stop any questioning from the police. An attorney might even be able to meet you at the station.

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Are Penalties Higher If I Was Stopped In A School Zone?

No. New Jersey changed their law in 2019 and eliminated any increased penalties for being stopped in a school zone. However, criminal penalties will increase if you actually hit someone on school property or in a crosswalk.

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What Is An "Allowing A DWI" Charge In New Jersey?

New Jersey's law also makes it illegal to let someone drive your vehicle if they are under the influence of alcohol or drugs or have a BAC of 0.08% or higher. The penalties are the same as if you had been picked up for DWI yourself.

For example, you might let your sister take your car. If she gets pulled over and her BAC is over 0.08%, she can face DWI charges. Because you allowed her to drive your car, you can also face legal consequences.

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Can I Drive To Canada With A DWI Conviction On My Record?

Canada Border Services Agency Yes, but Canada might not let you enter. Officials will want to know how much time has passed since the DWI and whether you've been convicted of other offenses since then. Canadian officials can see a U.S. citizen's driving records. Getting stopped every time you enter Canada can become a hassle, which is one more reason to fight any DWI charges you may be facing.

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What Happens If I Can't Pay The Fines Or Surcharges?

New Jersey can suspend your license indefinitely. This will make it much harder to get to work and to ever pay what you owe. The state might also garnish your wages or put a lien on your property. Speak with your New Jersey DWI attorney if finances are a problem. You should raise this issue with the judge ahead of time to avoid complications.

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What Lawyers Should I Avoid Hiring?

There are countless New Jersey DWI Lawyers advertising their services. Some lawyers are more experienced than others. There are some red flags you should be aware of.

Avoid any lawyer who guarantees a result. No ethical lawyer would do such a thing. Based on their experience, lawyers can help you understand what "might" happen. But they won't promise to get your charges dismissed or keep you out of jail.

Avoid lawyers who only tackle one or two DWI cases each year on the side. This person might be a great divorce lawyer, but DWI cases require detailed knowledge of ever-changing laws and regulations. You want a lawyer who keeps up.

Also, don't be impressed by lawyers who claim special knowledge of the Alcotest machine. These lawyers are not running the machine when you take it. They simply do what any lawyer will do—review the test results and find reasons why the results may not be credible.

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Can I Be Arrested For DWI On Federal Property?

Yes. If you were arrested on land managed by the National Park Service, you'll face misdemeanor charges per federal regulations. If you were on other federal property, the federal courts will use New Jersey's DWI law to prosecute your alleged offense.

New Jersey DWI Attorney

Tara Breslow-Testa and Associates specializes in DWI cases, among a host of other criminal matters. We promise to handle your case aggressively and give you the individualized attention that you deserve. Because DWI charges can carry significant penalties if you are convicted, you need skilled representation to protect your rights and to secure a favorable outcome. Attorney Breslow-Testa can defend anyone accused of DWI. Call 732-784-2880 or connect with us online to schedule a free consultation with Tara Breslow-Testa and Associates today to discuss your situation.

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