How Do You Successfully Dispute A DWI Charge In New Jersey?
Interviewer: There is no magical defense, but what areas of a DWI case are most ripe to dispute or fight? Do you focus on the traffic stop and activities at the police station?
Carl: There is a lot of fertile ground there. I always say, “Your defense starts with the stop.” Then, I ask, “Why did the police pull you over in the first place?” A lot of times, the camera affixed to the police car, if there is one, can be very critical in aiding our defense.
This is because a police officer may say you were weaving in and out. However, the camera shows you were driving in total control. Perhaps when the police put on their lights, you were in total control of the car and pulled right over.
It always starts with the stop and why the police pulled you over. Was there a legal reason? Very often police ask if you have been drinking. They are allowed to do this.
In a number of cases, people say, “No, I have not.” If the person says he has not been drinking, then why did the next thing happen? Usually the next thing to happen is the person is ordered out of the vehicle.
That is a disputed issue for me. Why are you ordered out of your vehicle if you were driving appropriately; and you also told the officer you had not been drinking? Then, we move on to the field sobriety test.
How was the test conducted? Did police follow the proper procedures? Did they explain, demonstrate and then execute? It really comes down to those three things when talking about field sobriety tests.
That leads to an arrest. Did police have enough information from the stop? Did the person admit to drinking alcohol? Was there a smell of alcohol? What were the reactions to the police officer’s questions? With the field sobriety test, was the demonstration, explanation and execution all in line with the law?
We are not done. There is still quite a bit involved in defending a DWI case. Was the standard statement read correctly? Was it read appropriately? Was it read at the right time? Of course, there is the breath test itself.
Was it done by somebody who is certified? Was the machine running properly? Was the machine certified? Was it serviced? Was it maintained? Was the solution up to date; and run properly? That is another area of fertile ground for a defense attorney who knows how to defend a DWI.
However, there is a host of other things. Did the police watch you for 20 minutes prior to you taking the breath test? Again, there are other ideas and challenges that can be made in a DWI case.
Interviewer: With a DWI charge, you have the right to remain silent and the right to have an attorney. Are a lot of people confused about whether they were read their Miranda rights?
Carl: I have answered that question online, in person and on the phone quite a bit. Miranda is a very important and fundamental constitutional right. People do not have to understand it. However, your attorney must understand it.
The best way to describe it is: Once you are in custody- a term used in law by lawyers and judges- and the police start interrogating/asking you questions that could incriminate you, that is when Miranda is triggered.
By Carl Spector