20 Ways to Challenge a DWI
There are many ways to defend against a New Jersey DWI charge. Here is a list of some of the best DWI defense tactics put together by New Jersey DWI attorney Evan Levow. Not all of these will apply to every case. Please call us today for a free consultation.
20 WAYS TO CHALLENGE A NEW JERSEY DWI
- Illegal Stop – a New Jersey DWI enforcement officer cannot stop a car without having a reasonable and articulate basis to believe that a law has been violated, or he can articulate unusual operation of the motor vehicle. Therefore, if the officer stops the car simply because he saw the driver walk out of a bar and get into the car, the New Jersey DWI charge may be dismissed based on a violation of the driver's rights.
- Medical and Health Problems – Medical problems with legs, arms, neck, back and eyes can affect the results of field sobriety tests. Other medical conditions can affect the validity of breath test results.
- Bad Weather – Weather Reports establishing high winds, low visibility, ice, and other conditions may be used to explain poor driving or balance on the field sobriety tests.
- Standardized Field Sobriety Tests are not reliable evidence of intoxication. In healthy persons, the one-leg stand test is only 65% accurate in predicting someone to be over the legal limit of 0.08% BAC. When I went to school that was a D! And the walk-and-turn test is only 68% accurate. Persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by field sobriety tests. The eye test is not admissible in NJ courts to prove that you were intoxicated.
- Non-Standard Field Sobriety Tests are not much better than flipping a coin to see if you are under the influence. Neither the Federal Government (NHTSA) or medical science consider touching your finger to your nose, saying the alphabet, or counting backwards as valid tests to determine intoxication.
- Videos or Dispatch Tapes – All New Jersey State Troopers, and many other New Jersey DWI enforcement officers have video cameras in their patrol vehicles. These videos, along with videos from testing rooms, booking rooms, and other sources can be good defenses to some New Jersey DWI charges. These videos can show that the field sobriety tests are not as bad as the officer interpreted them. We have seen tapes that showed the driver’s speech was not muttered, slurred, or incoherent, their balance was not swaying or stumbling, and their attitude was not combative or uncooperative. These are areas where a qualified New Jersey DWI attorney can show that the officer has a bias towards the driver and is not accurately testifying about the driver’s clues of intoxication. Most vehicle stops are audibly recorded on dispatch tapes.
- Failure to Read the Implied Consent Warning - The New Jersey DWI enforcement officer must read the driver the New Jersey Implied Consent Law before the driver submits to the breath test. Failure to read the form or failure to read the correct form may result in the dismissal of charges.
- Failure to Conduct Observation Period - If the police fail to keep you under observation for 20 minutes prior to breath testing, the results of the testing may be excluded in court.
- Breath Test Operator Unlicensed – A New Jersey Breath Test Operator must possess a valid operator’s license, or the breath test is inadmissible.
- Breath Test Operator License Expired – A New Jersey Breath Test Operator must possess an unexpired operator’s license or the breath test result is inadmissible. Licenses automatically expire in 3 years.
- Breath Testing Machine Malfunction - If there is a malfunction or repair of the breath test machine, your test results may not be accurate. Examples of this include: improper machine settings; failure of the machine to recognize errors in testing; machine failure on timing issues; failure to input correct arrest information. If the prosecutor can’t show that all the proper procedures were followed with the machine, then the results of the testing might not be admitted into evidence.
- Breath Test Machine Not Properly Operated – There are specific protocols which must be followed for a breath test to be considered valid. Failure to follow these protocols can result in improper readings, and may be a reason to exclude the readings in court.
- Interfering Substances - False breath test results may be caused by many items such as asthma medication, mouthwash, cough drops, paints, or fingernail polish, which contain forms of alcohol. Chemicals that you work with may also cause a false positive result on the breath tests.
- Inaccurate Blood Test – The admissibility of blood testing depends on the procedures used in taking the sample, preservation of the sample, the testing protocol and the analysis of the sample. Sometimes police blood testing fails to follow the prescribed rules of testing, analysis, and preservation. Medical facilities that take blood samples sometimes fail to follow proper protocol. Even if they say the prep swab is non-alcoholic, there can be some trace of alcohol in the swab which can subject samples to a possible Motion to Exclude. Hospital tests have been shown to overestimate a blood sample by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons. When hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results can report falsely elevated readings.
- Drug Based DWIs / Drug Recognition Evaluation (DRE) – If your blood pressure and temperature were taken, and you were induced to perform additional physical tests in the police station then you went through DRE protocol. This protocol has not been proven reliable in New Jersey court.
- Forced to Give Blood or Urine - You cannot be forced to give blood or urine. If you were forced to do so, results can be excluded in court. If you refuse to give blood or urine, you cannot be charged with refusal: Refusal applies to breath testing only, in NJ.
- Failure to Provide Complete Discovery – If the prosecutor has not provided all the required evidence, a motion to compel evidence must be filed. If the discovery is still not provided by the date ordered by the judge, then charges may be dismissed.
- Failure to Provide a Speedy Trial - The State must provide a trial within specified time periods. If they don't, the case may be dismissed. Guidelines require that NJ DWI cases be resolved within 60 days of the date of the arrest.
- Independent Witnesses – Sometimes witnesses to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant’s sobriety.
- Expert Witness – Expert Witnesses are available to review the validity of the breath test, blood test, and field sobriety tests. Almost all cases require the assistance of these experts.