Four Best Ways to Beat a DWI Charge in New Jersey

By Travis Tormey posted in Drunk Driving (DWI) on Monday, September 17, 2012

Many of my clients ask about the most common ways to beat a DWI charge in New Jersey. Here are four tactics an experienced drunk driving attorney will use when attacking your DWI case:

1. The Probable Cause for the Stop

2. The Field Sobriety Tests

3. The Twenty Minute Observation Period

4. The Alcotest 7110 Breath Test Result

The first tactic an experienced DWI lawyer will use when attacking the State’s case is challenging the probable cause for the initial stop. If the probable cause for the initial stop was not sound or illegal or unconstitutional, then everything that stems from that illegal stop is inadmissible in court based on the “fruit of the poisonous tree” doctrine. For example, if the police officer stopped your vehicle for speeding but the officer was not license to operate the radar detector or the radar detector was not calibrated properly, this can be used as grounds to challenge the probable cause for the DWI stop and move to suppress the DWI in its entirety. Moreover, if you were stopped at a DWI checkpoint or roadblock and the State failed to comply with the constitutional requirements of a roadblock in New Jersey such as the State failed to publish notice of the roadblock to the public, then the DWI checkpoint can be invalid and the entire DWI can be thrown out of court based on a lack of probable cause for the initial traffic stop.

The second tactic I use to attack the State’s drunk driving prosecution is challenging the use of field sobriety tests as reasonable suspicion for the DWI arrest. New Jersey Police are properly trained and certified in conducting these specific field sobriety tests. Normally, this testing encompasses three different tests, which Police conduct and evaluate in order to determine signals or cues of potential impairment in order to establish the next level of probable cause for a DWI/DUI arrest. The three most commonly used standardized field sobriety tests are the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg-stand test. The National Highway Traffic and Safety Administration (NHTSA) has determined that these tests are reliable in identifying subjects whose B.A.C.s are .10% or higher. Remember, in New Jersey the legal limit is .08% Blood Alcohol Content (BAC). Even though these tests are scientifically proven, their accuracy for a subject, however, is completely contingent upon the tests being administered in a prescribed and standardized manner. In many cases, police officers make mistakes in either instructing the test or in counting cues which lead to a failure of the field sobriety test which was not an actual cue based on the standards of NHTSA. As such, examining the police reports and any video evidence of the field sobriety testing can create issues with the State’s DWI prosecution.

The third tactic used to combat the State’s drunk driving case is known as the twenty (20) minute observation period. According to State v. Chun, the landmark DWI case in New Jersey, law enforcement officers must observe a defendant for twenty (20) uninterrupted minutes prior to the defendant providing a breath sample on the Alcotest 7110 breath testing device. The reason for this is that if a defendant chews gun, smokes a cigarette, burps, eats something, etc. this will affect the defendant’s mouth alcohol levels and could create a false reading on the breath testing machine. If the twenty minutes is interrupted for any reason (for example, if the defendant uses the restroom) then the twenty minute period must start again before a valid breath reading can be obtained. If this twenty minute period if not followed properly, then the breath test should not be admissible in court because it is not reliable to prove the defendant’s blood alcohol content (BAC) beyond a reasonable doubt.

Finally, the fourth most common tactic I use to defeat a DWI prosecution in New Jersey is attacking the Alcotest 7110 breath testing device itself. I am one of a few New Jersey attorneys who are actually certified on the breath testing device. I went to a seminar in 2010 with Draeger Safety, the manufacturer of the breath testing device. At this two-day seminar, I obtained my Alcotest 7110 certification which means that I am now trained on the Alcotest 7110 MKIII-C Version NJ3.11’s analytical system, components, and peripherals, as well as how to operate the instrument and perform a New Jersey specific breath test sequence. I have the same certification that the police officers obtain to be licensed to obtain a breath sample from a defendant in New Jersey. This expertise allows me to review the foundational documents for the Alcotest machine in your case, which includes calibration records, solution change reports, repair records, etc. to determine if there are any issues with the breath testing device itself. If there is a problem with the machine, then any reading obtained in your case should not be admissible in court.

These are the four most common ways to attack a DWI prosecution in New Jersey. For additional information, contact my Paramus or Morristown offices anytime for a free initial consultation at (201)-330-4979.


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