DUI & DWI Defenses - 23 Ways to Beat a DUI in NJ

If you have been pulled over for a DUI in New Jersey and charged, you could be facing serious long-lasting consequences to your record, restricted mobility, and may be sentenced to jail time if you are convicted. Other consequences could include fines, losing your job due to missed time, or participation in the Intoxicated Driver Resource Center (IRDC) Prevention program.

With the severity of the consequences of a DUI conviction, having a lawyer to defend you is important and may increase your chances of beating a DUI. In 2017, the New Jersey state judiciary reported that DUI guilty verdicts decreased to 71 percent, down from 85 percent in 2008. Additionally, 24 percent of guilty charges were dismissed by the court, meaning almost 1 in 4 DUI cases were dismissed.

Even with DUI dismissals on the rise, the chances you are convicted are much higher than the chances for a dismissal. Having an experienced NJ DUI lawyer that understands how to build a DUI defense & spot the signs of a weak criminal case may make the difference in your case.

What the Prosecution Has to Prove for a DUI Conviction

For a successful DUI conviction, the prosecution must prove beyond a reasonable doubt that the defendant committed the crime they were accused of.

The prosecution must prove:

The defendant drove the vehicle
The defendant was impaired or had a prohibited amount of alcohol or drugs in their body (“under the influence”) while driving the vehicle

Lawyers often target these two areas of proof as the prosecution must prove both to be true for a successful conviction. Other defenses may also be available depending on the details of the stop, arresting procedures, administration of field tests, and court procedures.

Challenges to a DUI Charge

There are many potential defenses for a DUI charge such as proving the defendant was not impaired, the arresting officers failing to follow proper procedures, a violation of the defendant’s constitutional rights, proving that testing equipment used as evidence was not working properly, or even inclement weather. The lawyers at Rosenberg | Perry & Associates include experienced DUI attorneys and former prosecutors. They are familiar with DUI defenses and how prosecutors may choose to prove the defendant is guilty.

Illegal Motor Vehicle Stop

Article I, paragraph VII of the New Jersey Constitution provides that all citizens have the right to be free of all “unreasonable searches and seizures.” As a result, law enforcement must have some legal justification for pulling you over. In New Jersey, the standard is that law enforcement must have “reasonable suspicion” that a crime has occurred or that a motor vehicle offense has been committed. If the State cannot meet that standard, all evidence obtained as a result of the motor vehicle stop may be suppressed and is inadmissible against you at trial.

“What is a ‘Pretextual Motor Vehicle Stop’ and is it legal in NJ?”

Lack of Proof of Operation Beyond a Reasonable Doubt

One of the basic elements the State must establish in order to prove its case against you is the operation of the motor vehicle. Depending on the facts of your case, operation may be at issue. There have been a number of cases that have addressed this issue of operation. In State v. Sweeney, 40 N.J. 359 (1963), the defendant was found sitting in the driver’s seat of his car, which was parked at the curb with the motor running. The Court held that the defendant could be convicted of “operating” his car if there was evidence that infers he intended to move the vehicle. In State v. Daly, 64 N.J. 122 (1973), the Supreme Court held that an individual parked outside of a bar at 3:20 a.m. with the lights on and motor running was not operating a motor vehicle and therefore cannot be charged with DUI.

Failure to Provide Discovery (Evidence)

Pursuant to New Jersey Supreme Court case State v. Chun and the Rules of Court, the prosecution must provide all evidence in its possession as well as various discovery pertaining to the Alcotest 7110, the device utilized to test breath defendants’ breath samples (commonly referred to as a “breathalyzer”). If the State fails to provide this evidence, your defense attorney can file a motion to compel the production of evidence. If granted, an Order will be issued to force the prosecution to provide the evidence it is withholding. The State’s failure to comply with the Court’s order may result in the entire case being dismissed.

Understanding how the Alcotest 7110 must be utilized to establish accurate readings is essential. Daniel Rosenberg is one of only approximately 25 attorneys in New Jersey licensed to operate this device. As an Alcotest-certified DUI attorney, Daniel Rosenberg can tailor your defense based on the results of the Alcotest machine and any other evidence provided by the State.

Invalid or Inaccurate Standardized Field Sobriety Tests (SFST)

There are several “standardized” field sobriety tests: one-leg stand, walk-and-turn, and horizontal gaze nystagmus (an eye test referred to as HGN). The results of these tests are used by law enforcement as evidence of intoxication. In New Jersey, the results of the HGN eye test cannot be used against a defendant.

According to the NHTSA, the accuracy of the walk-and-turn test, when applied according to their guidelines, is only 66%. There are also other factors that compromise the validity of these tests, such as certain medical conditions, weight, age, and physical injuries that an experienced DUI attorney will investigate to build your defense.

What are Standardized Field Sobriety Tests (SFST)?

Use of Non-Standardized Field Sobriety Tests

There are several non-standardized field sobriety tests that may be used during a DUI stop to determine intoxication.

These non-standardized field sobriety tests can include:

Touching your finger to your nose
Reciting the alphabet backward
Counting backward

The NHTSA does not consider this test to be a valid indicator of intoxication and a lawyer will look into if any of these tests were used to build a defense.

Conflicting MVR (Mobile Video Recorder) Evidence

Some police departments have MVR recordings of your motor vehicle stop and the administration of your SFSTs. It is less frequent that departments have video within the police station. These videos are utilized to evidence your physical and mental condition at the time of your arrest. You are entitled to a copy of all videos and evidence relating to your DUI arrest. These videos can be used to establish that you performed better on your field sobriety tests than was reported by the officer in his police report. The videos also can be used to challenge the credibility of the arresting officer(s). Finally, the failure to produce such videos or the destruction of such videos (intentionally or otherwise) can be a basis to dismiss your case.

Failure to Read Implied Consent Warnings

Everyone facing an arrest and DWI charges in New Jersey must be read a standardized statement drafted and approved by the New Jersey Attorney General’s office. That statement must be read in a language that you can understand. If you do not speak English, it must be read in a language that you understand. Failure to read the implied consent warning statement and properly advise a defendant may lead to the dismissal of the DUI charge(s).

Improper Investigation or Miranda Right Violations

The United States Constitution requires police officers to inform a suspect when they are officially under arrest which must be distinguishable from a simple conversation in which the person is free to leave.

Additionally, If you are arrested under suspicion of driving under the influence the arresting officer must advise you of your Miranda Rights.

These rights include:

The right to contact an attorney
The right to court-appointed counsel if you cannot afford an attorney
The right to remain silent;
And that any statements made after you are advised of your rights may be used in the court of law by the prosecutor.

If the arresting office fails to advise you of those rights any evidence gathered afterward may be excluded in court and will be unusable by the prosecution. Evidence that may be deemed inadmissible in court could include incriminating statements, biological evidence such as blood tests, and field sobriety test observations.

In this video Robert Perry, Managing Partner at Rosenberg | Perry & Associates, explains what happens if you are not read your Miranda Rights.

Certification Deficiencies

Any law enforcement officer who operates an Alcotest 7110 device in New Jersey during an arrest must be properly trained and certified. Those certifications must be current and copies must be provided to your defense attorney. If the officer administering the Alcotest does not possess valid certifications then the breath results are inadmissible in court. Additionally, each Alcotest 7110 in New Jersey must be inspected and recalibrated periodically. This procedure is documented and must be done within a specified time period. The documents are produced at trial to evidence that the machine was in proper working order at the time the breath sample was taken. Failure to provide such documentation may result in the breath test results being deemed inadmissible.

As an Alcotest-certified DUI attorney, our lawyers have intimate knowledge of the proper administration and maintenance of these devices to ensure any evidence presented against you is fair and valid.

Failure to Conduct a Twenty-Minute Period of Observation

The accuracy of a breath sample may be affected by the presence of mouth alcohol. Mouth alcohol can be present if a defendant is chewing gum, vomits, belches or regurgitates in his/her mouth. As a result, the Supreme Court requires that each person submitting to a breath test be observed for a period of twenty (20) minutes immediately prior to providing a breath test. Failure to do so may result in the breath samples being inadmissible and the DUI charges dismissed.

Improper Operation of the Alcotest 7110

The Supreme Court has outlined, in detail, the steps and procedures an officer must follow when administering a breath test. The officer’s failure to follow these steps calls into question the validity of the breath test results and may result in the results being deemed inadmissible. Daniel M. Rosenberg has received training and certification in the proper operation of the Alcotest device to ensure the arresting officer follows these procedures.

How Does the Breath Machine Determine BAC?

Inaccurate Blood Test or Improper Blood Collection Procedures

Law enforcement must follow specific procedures for drawing blood when the use of that sample is expected or anticipated in a prosecution. These procedures differ from those followed by EMTs or hospitals. Failure to follow proper procedures may result in the results being deemed inadmissible. In addition, New Jersey case law requires law enforcement officers to obtain a search warrant before a defendant’s blood can be taken without his or her consent.

Forced to Provide Urine or Blood Samples

In New Jersey, you cannot be forced to provide urine or blood. If a suspect is forced to provide these biological samples the results may be deemed inadmissible in court. Additionally, you can not be charged with refusal to submit for refusing to give blood or urine as refusal only applies to breath tests.

Drug Recognition Evaluations (“DRE”)

It is against the law to drive while under the influence of a controlled dangerous substance, such as marijuana, cocaine, heroin or oxycodone. In New Jersey, some officers have received training as Drug Recognition Evaluation experts. These officers, and the State, claim that DRE experts can accurately determine whether someone is under the influence of a CDS. DRE testimony has not been deemed reliable evidence to prove guilt beyond a reasonable doubt.

Do I Have to Consent to a Drug Recognition Expert (DRE) Examination?

Medical Conditions

There are various medical conditions that may negatively affect the State’s proofs in a DUI case. There are two (2) varieties of such medical conditions. First, some medical conditions have symptoms that mimic intoxication. Providing evidence of such conditions to the State may raise a reasonable doubt as to whether someone was under the influence of alcohol or merely suffering from a medical condition. These conditions may include diabetes, vertigo, a concussion and prior knee/ankle injuries. Second, some medical conditions may not mimic intoxication but will affect the validity of a breath test. These conditions include G.U.R.D., postnasal drip, crying, and the presence of blood in the mouth.

Police Reports

Law enforcement officers are trained to draft reports setting forth the facts and circumstances surrounding the arrest and investigation of a defendant for drunk driving or other DUI-related charges. Officers receive this training in the police academy. Your defense lawyer can use the information contained in the police report to challenge the officers’ account of the arrest. By way of example, inconsistencies amongst various reports can call into question the accuracy of the State’s facts. Police reports are also utilized to cross-examine officers who testify at trial if their testimony is not consistent with their report.

Independent & Expert Witnesses

Independent witnesses may be available to provide evidence of the defendant’s sobriety. Witnesses could include bartenders, hospital staff, or individuals present during the arrest. While witnesses are uncommon they may be helpful in building a defense.

More commonly, expert witnesses may also be utilized to review the validity of breath tests, blood tests, and field sobriety tests gathered during the police investigation.

Bad Weather

The weather on the date of your arrest can have tremendous significance on your defense strategy. Rain, snow, sleet, etc. may explain erratic driving or swerving. It may also explain poor performance on Standardized Field Sobriety Tests.

Failure to Provide a Speedy Trial

In New Jersey, all individuals charged with a crime have the right to a speedy trial. Under New Jersey law cases must be resolved within 60 days of the arrest. Any delay past 60 days may constitute unlawful treatment and failure to receive a speedy trial and the case may be dismissed.

The lawyers at Rosenberg | Perry will work relentlessly to ensure that you receive proper due process and that your case is treated fairly and lawfully.

DUI and DWI Defense Law Firm

The consequences of a DUI in NJ can be severe — that is why it is important to entrust your case to an experienced DUI attorney. In addition to our history of defending DUIs, Daniel Rosenberg has successfully completed the Draeger Alcotest 7110 operator training course, which is law enforcement training on legal issues and operation of breath tests.

Contact Rosenberg | Perry & Associates, LLC for a free consultation to speak with us about your DUI charges today.