Is There a Way to Get Out of a DWI Charge?
Posted November 28th, 2016 by Anthony Carbone, PC.
Categories: Criminal Defense.
Is There a Way to Get Out of a DWI Charge?
Posted November 28th, 2016 by Anthony Carbone, PC.
Categories: Criminal Defense.
After a particularly hard day at the office, you and a few co-workers decide to blow off some steam and head to the bar. Knowing you have a long commute home, you only have a couple of beers and leave it at that. As you drive home, you go a little too fast and a police officer is soon pulling you over. He asks if you’ve been drinking and you admit that you had a beer. The next thing you know, the cop is arresting you for a DWI after failing a Breathalyzer test. You couldn’t have possibly had enough to be over the limit. What is going on?
Unfortunately, this is a situation that has happened to quite a few people in New Jersey. In September, a coordinator in the State Police Alcohol Drug Testing Unit was criminally charged with allegedly skipping a legally required step in re-calibrating three breath-testing devices used by police to check the blood alcohol level of accused drunken drivers.
According to news reports, Sgt. Marc Dennis is accused of deliberately omitting a step in re-calibrating three Alcotest devices which are used to test the intoxication level of an accused drunken driver. Because of the police sergeant’s alleged actions, more than 20,000 DWI cases in New Jersey may be challenged in a court of law.
So let’s say you believe that you were arrested falsely for a DUI. Is there anything you can do fight the charges against you?
It’s important to note that New Jersey has very strict laws when it comes to drinking and driving. Even a first time offender could be facing jail time. However, there are ways to fight a DUI/DWI charge in New Jersey:
- Challenge the initial stoppage of your vehicle: In the scenario above, you were stopped because you were speeding. However, let’s say you were following the law when you were pulled over. If there was no probable cause to pull you over, then the case may be thrown out.
- Challenge the field sobriety tests: Police have been specially trained to conduct field sobriety tests. However, these tests must be administered properly and if the officer fails to conduct them properly, you have a fighting chance at getting your case dismissed.
- Challenge the Breathalyzer test: As the recent police scandal has shown, these devices can give a false reading if not properly calibrated.
Of course, we urge that you don’t fight this charge by yourself. It’s best to get an experienced DUI lawyer to help you with your case.
What a DWI Conviction Actually Costs You in New Jersey
Before getting into the mechanics of each defense, it helps to understand what is at stake. New Jersey treats DWI as a traffic offense rather than a criminal charge, which means it does not result in a criminal record in the traditional sense. That distinction sounds reassuring, but the practical consequences of a conviction are severe and lasting.
A first offense with a BAC between 0.08 and 0.10 percent carries a fine between $250 and $400, a license suspension of three months, up to 30 days in jail, and mandatory participation in an Intoxicated Driver Resource Center program. If the BAC is 0.10 percent or higher, the suspension extends to seven months to one year. A second offense within ten years brings a two-year license suspension, mandatory installation of an ignition interlock device, and a minimum 48-hour jail term that can extend to 90 days. A third offense results in a ten-year license suspension and 180 days in jail, with the possibility of serving 90 of those days in an in-patient rehabilitation program.
Beyond the statutory penalties, a DWI conviction triggers a surcharge of $1,000 per year for three years through New Jersey’s Motor Vehicle Commission. Auto insurance rates typically increase substantially, and some carriers drop DWI-convicted drivers entirely. Commercial drivers face separate and more severe consequences under federal regulations. For anyone holding a professional license, a DWI conviction may trigger a reporting obligation to a licensing board. The financial impact over several years can easily reach tens of thousands of dollars even on a first offense.
Understanding that full picture is what makes mounting a real defense worth the effort.
Breaking Down Each Defense in Depth
Challenging the Initial Traffic Stop
The constitutional protection against unreasonable searches and seizures extends to traffic stops. A police officer must have reasonable and articulable suspicion that a traffic violation or criminal activity is occurring before pulling a vehicle over. This is a lower standard than probable cause, but it is not unlimited. An officer cannot pull someone over based on a hunch, an anonymous tip without corroboration, or the simple fact that a car was leaving a bar parking lot late at night.
When the stop itself lacked legal justification, the remedy is suppression of the evidence obtained as a result of that stop. This is the exclusionary rule in action. If the court finds the stop was unlawful, everything that followed, including the field sobriety tests, the Breathalyzer reading, and any statements the driver made, can be excluded from evidence. A DWI charge built on suppressed evidence rarely survives.
The practical implication is that every detail of how the stop was initiated matters. Dashcam footage, the officer’s notes and testimony, and any available surveillance video from the area can all shed light on whether the legal standard was genuinely met. Speeding is a legitimate basis for a stop, as in the scenario described above. Weaving within a lane without crossing markings, driving at night in a high-crime area, or leaving a bar may not be.
Challenging the Field Sobriety Tests
The National Highway Traffic Safety Administration has standardized three field sobriety tests: the Horizontal Gaze Nystagmus test, the Walk and Turn, and the One Leg Stand. NHTSA research claims specific reliability percentages for each when administered correctly under controlled conditions. The key phrase is administered correctly. These tests depend heavily on the officer’s training, the conditions at the roadside, and the physical characteristics of the person being tested.
The Horizontal Gaze Nystagmus test requires the officer to observe involuntary jerking of the eye as it follows a moving object. It sounds objective, but administration errors are common. The object must be held at a specific distance, moved at a specific speed, and held at specific positions for specific durations. Deviations from the protocol undermine the reliability of the result.
The Walk and Turn and One Leg Stand tests are divided attention tests designed to assess balance and the ability to follow instructions simultaneously. They are also affected by footwear, lighting, road surface conditions, wind, the person’s age, weight, and any pre-existing physical conditions that affect balance. An officer who fails to account for those factors, or who does not properly instruct the driver before beginning the test, may be administering a test that has no meaningful connection to intoxication.
Non-standardized tests, such as reciting the alphabet or estimating the passage of 30 seconds, carry no scientific validation at all. Courts vary in how much weight they give them.
Challenging the Breathalyzer Test
New Jersey uses the Alcotest 7110 device, made by Draeger Safety Diagnostics. The Alcotest is not infallible, and the state’s own legal history demonstrates that clearly. The New Jersey Supreme Court’s decision in State v. Chun, decided in 2008, established that Alcotest results are admissible but subject to strict foundational requirements. Those requirements include proper device certification, regular calibration using approved reference standards, maintenance of required records, and correct administration of the test by a trained operator.
The Sgt. Dennis scandal referenced in the original post is not an isolated example of calibration failures causing wrongful DWI charges. It is a particularly large-scale illustration of a vulnerability that defense attorneys scrutinize in every Breathalyzer-based case. Obtaining the calibration and maintenance records for the specific device used in a given arrest is standard procedure when challenging a breath test result.
Physiological factors can also affect Breathalyzer accuracy. Mouth alcohol from a recent belch, heartburn, or the presence of certain dental work can cause inflated readings. A person with a rising blood alcohol level, whose BAC was below the legal limit while actually driving but crossed the threshold by the time of testing, presents another avenue of challenge. The test measures BAC at the time of the test, not at the time of driving, and that gap can matter in close cases.
Certain medical conditions, including GERD, acid reflux, and diabetes, can produce elevated or false-positive breath test readings. A person taking certain prescription medications may also register a result that does not accurately reflect their level of impairment.
What Happens at Municipal Court and Why Preparation Matters
DWI cases in New Jersey are heard in Municipal Court. There is no jury. The municipal court judge serves as the finder of fact, which means that judge evaluates the credibility of the witnesses, the reliability of the evidence, and the legal arguments presented. The standard of proof is the same as in any criminal proceeding: the prosecution must prove guilt beyond a reasonable doubt.
That standard applies with full force. An officer’s testimony about observed signs of intoxication, swerving, slurred speech, bloodshot eyes, and the smell of alcohol is evidence. It is also subject to cross-examination. The questions asked of a police officer during that cross-examination, the specific records subpoenaed before trial, and the expert testimony potentially introduced about Breathalyzer reliability are all functions of how thoroughly the case was prepared.
Municipal Court convictions can be appealed to the Law Division of the Superior Court, where the appeal proceeds as a de novo review, meaning the case is heard fresh rather than reviewed only for legal error. That second opportunity is real, but it is always better to build a complete defense at the first level than to rely on appeal.
The Consequences of Pleading Guilty Without a Fight
Many people charged with DWI in New Jersey plead guilty because they assume the evidence is overwhelming or because they want to resolve the matter quickly. That decision deserves careful thought. Unlike many criminal offenses, DWI in New Jersey carries no plea bargaining to a lesser charge. The legislature has prohibited it. A DWI is a DWI; there is no reduced offense like reckless driving available through negotiation with the prosecutor in the way that exists in some other states.
That prohibition makes the actual defense of the charge the only real avenue for avoiding a conviction. If there is a viable challenge to the stop, the tests, or the Breathalyzer result, that challenge must be litigated. There is no negotiated middle ground.
What to Do Immediately After a DWI Arrest
The period immediately following an arrest is consequential in ways people often do not realize. Statements made to police at the scene or at the station can be used in evidence. New Jersey’s implied consent law means that refusing to take a breath test carries its own separate penalties, including license suspension that is separate from any DWI conviction. Understanding those obligations and consequences before deciding how to respond requires legal advice that simply cannot wait.
Writing down everything you remember about the stop, the tests, the officer’s instructions, the location, the lighting, and anything you ate or drank in the hours before the arrest creates a contemporaneous account that is far more reliable than memory alone weeks later when the case goes to court. The officer will have a report. You should have your own detailed account.
A New Jersey Criminal Defense Attorney who handles DWI cases regularly knows how to obtain the discovery materials that make these defenses possible: the Alcotest certification records, the officer’s training history, the dashcam footage, and the maintenance logs for the specific device used. Without those materials, a defense is being built without the foundation it needs.
If you were arrested for a DWI in New Jersey, don’t fight it alone. Contact the Law Offices of Anthony Carbone today for a free consultation
