2013 DWI and DUI Results

2013: Municipal Court: Attorney was retained by local client who had avoided being arrested on a warrant since 1990 when he failed to appear in court. He was arrested after being stopped for a routine traffic matter. Bail was posted and he retained the Attorney to represent him on the old matter. Police reports were still available which showed that the client was stopped by police officer for passing on the right. When the officer approached the vehicle, the client had gotten out and was leaning on the car. The officer smelled a strong odor of alcohol. The client was not given any field sobriety tests, but, was immediately arrested, put in a police car, and read his Miranda Rights. When they arrived at the station, client was given two breath tests. On both attempts client blew a .27%. Client was charged with 39:4-85 Passing on the Right, 39:4-50 Driving Under the Influence, and 39:3-40 Driving While Suspended. If found guilty, this would be clients 4th offense DWI which comes with a 10 year suspension of driving privileges, 180 days in county jail, and a fine of $1,000.

Result: Attorney investigated the case and found that while the documents were still available, the police officer had retired and moved away. He obtained a dismissal of all charges with a $1,500 fine for contempt. The client was then able to obtain a New Jersey license after more than 20 years of being suspended.

2013: Municipal Court: Client lost control of his car and struck a pole causing extensive damage. He failed psycho-physical testing and was placed under arrest for violation of 39:4-50. The Alcohol Influence Report (AIR) indicated an Alcotest result of .10% BAC making this an upper tier DWI with a 7 month to one year loss of license. Client was also charged with 39:4-96 Reckless Driving and 39:4-88B Failure to Maintain Lane.

Result: The attorney obtained an expert’s report which indicated that upon arrival at the police station, the client was placed in a room to be monitored for the 20 minute observation period, which began at 3:07a.m. The Alcotest was not given until 3:33 a.m., which created a 6 minute gap between the end of the observation period and when the test was given. Under N.J. law the observation must be direct, continuous, and uninterrupted. Further, the reports did not state whether the officer had changed the mouthpiece on the breathalyzer machine between samples, as required by law. Attorney was able to have the results of the Alcotest kept out of evidence and the client pled guilty to a lower tier DWI with only a 3 month loss of license and fines.

2013 – Municipal Court: Client was stopped for driving at night without headlights. The officer noted a smell of alcohol and administered field sobriety tests. Client was unable to lift his leg off the ground in the One Leg Stand Test and swayed heavily and tried to just keep walking away from the officer when given the Walk and Turn Test. Client was arrested and taken to police station where he blew once into the Alcotest with a .16% result, but, refused to give a 2nd breath sample as required for a valid test. The client had 3 prior DWI convictions which would make this a 4th offense. Client was charged with 39:4-50, Driving While Intoxicated (4th Offense) (180 days mandatory jail, 10 year loss of license, $1000 fine), 39:4-50.2 Refusal to Submit to a Breath Test (4th Offense as the prior DWI’s enhance a Refusal conviction) (10 year license suspension in addition to the suspension on the DWI, $1000 fine), Reckless Driving (5 points), 39:3-66 Maintenance of Lamps, and 39:3-29b and c Failure to Produce Documents. The client was facing a 20 year loss of license in addition to the jail time.

Result: Attorney was able to argue that despite the poor performance on the psycho-physical tests, the State could not prove guilty beyond a reasonable doubt on the DWI charge. The 4th offense DWI was dismissed and the client did not receive any jail sentence. A guilty plea was entered to the Refusal and the client was fined $1006 and lost his license for 10 years with an interlock device for 3 years when his license is restored. All other charges were dismissed.

2013: Municipal Court: Client was stopped for failure to have headlights on after dark. The officer smelled alcohol on the client and gave the client field sobriety tests which he failed. The Client was placed under arrest and transported to the police station where he was had two Alcotest readings of .13% BAC, an upper tier DWI violation requiring a license suspension of between 3 months and one year. The client was charged with 39:4-50 Driving While Intoxicated, 39:4-66 Maintenance of Lamps, and 39:4-97 Careless Driving.

Result: The attorney obtained an expert’s report which challenged the adherence to the 20 minute observation period required by law. The Computer Assisted Dispatch Report (CAD) indicated that the client was brought into the station at 2:45 a.m. The first breath test on the Alcotest was given at 3:03 a.m. It was clear that the 20 minute observation period was not fully observed by the officer. The breath tests were also given too close together for the machine to properly clear itself of residual alcohol between tests (2 minutes is required). The Alcotest was therefore not admitted into evidence and the DWI charge was amended to a lower tier, with only a 3 month suspension of driving privileges, 12 hours IDRC, and approximately $640 in court fines and fees. The Careless Driving and Maintenance of Lamps were dismissed.

2013: Municipal Court: Officer observed client driving in an erratic manner and pulled him over. The officer smelled a strong odor of alcohol coming from the vehicle. Client was given a series of field sobriety tests, which he performed extremely poorly on. Client was brought to the police station, where the police report indicated he was properly observed for the 20 minute observation period and the mouthpiece was changed between samples. The breath test result was .16% BAC and client was charged with an upper tier 39:4-50 Driving While Intoxicated (7 month to 1 year loss of license and mandatory interlock device) and39:4-144 Failure to Stop at a stop sign.

Result: Attorney obtained an expert opinion that the 2 minute lockout feature of the Alcotest was not enabled properly and the readings should be inadmissible. The Prosecutor agreed and the charge was amended to a lower tier DWI with a 90 day license suspension and no interlock. The 39:4-144 was dismissed.

2013 – Municipal Court: Client was driving in Town 1 and sideswiped a vehicle and then continued to drive. Police responded to the scene of the accident and began the search for the car. While the police searched for the car, the Client was in another traffic accident in Town 2. The police went to Town 2 and located the Client. He was given a field sobriety test which he failed and was transported to police headquarters where he blew a .11% BAC (an upper tier DWI – 7 to 12 month suspension). The police report makes no mention of checking the mouth cavity before the observation period, as required by law. In Town 1 Client was charged with 39:4-50 Driving While Intoxicated, 39:4-129 Leaving the Scene of an Accident (six month suspension), 39:4-130 Failure to Report an Accident, and 39:4-96 Reckless Driving. In Town 2 Client was charged with 39:4-50 Driving While Intoxicated, 39:4-97 Reckless Driving, and 39:4-96 Careless Driving. He was facing a maximum license suspension of 2 1/2 years and 14 motor vehicle points. A motion requesting these matters be consolidated pursuant to N.J.C.R. 7:8-4 was filed with the Superior Court because these charges all stemmed from the same series of events.

Result: The motion to consolidate the charges in one court was granted by the Superior Court. Based on the expert report and discrepancies in the police report a plea bargain was reached. Client pled guilty to a lower tier DWI 39:4-50 and 39:4-130 Failure to Report an Accident from Town 1, and all other charges were dismissed. Client received a 90 day suspension of driving privileges and $514 in court fees and fines.

2013 – Municipal Court: Client was exhibiting erratic behaviors including driving around in circles in a shopping center parking lot yelling from his car. The police were summoned and client was given a field sobriety test which he failed and placed under arrest. He was charged with 39:4-50 Driving While Intoxicated and 39:4-96 Reckless Driving. During the first Alcotest the machine malfunctioned and the Client was transported to another police station. That Alcotest test was completed without incident, and a BAC of .20% was reported (more then twice the legal limit).

Result: The attorney challenged the administration of the Alcotest on two separate grounds. The first was that a comparison of the Alcohol Influence Report (AIR) from the first police station, the Computer Assisted Dispatch (CAD) Reports, and the AIR from the second police station raised reasonable doubt as to the validity of the 20 minute observation period. The second one was that the Client had undergone a Gastric Bypass Procedure which would affect the absorption of alcohol in his body and the Alcotest Result. A Not Guilty finding was entered to the charge of 39:4-50 Driving While Intoxicated. The client was found guilty of 39:4-96 Reckless Driving and received a six month suspension of driving privileges. He paid $389 in fines and court fees.

2013 – Municipal Court: Client was pulled over after failing to maintain his lane and swerving in and out of the shoulder. Client was unable to complete a field sobriety test and was escorted to the police station for a Breathalyzer test. The client was observed by an officer for the requisite twenty minutes, and then given the Breathalyzer test. The first two times the Client was unable to give sufficient samples. The third time a sufficient sample was taken, but on the fourth attempt a sample could again not be taken. At this time the Client refused to give any more samples. Client was ticketed for 39:4-50 Driving While Intoxicated, 39:4-50.2 Refusal, 39:4-96 Reckless Driving, 39:4-51b Open Container in a Motor Vehicle, and 39:3-76 Failure to Wear a Seatbelt.

Result: Client was facing a license suspension of 3 months on the DWI and 7 to 12 months on the Refusal. The attorney challenged the proper functioning of the Alcotest on the insufficient samples and arranged a plea to the lower tier DWI with a 3 month suspension of driving privileges, 12 hours of IDRC, and $733 in court fees and fines and a dismissal of the Refusal. The remainder of the charges were also dismissed.

2013 – Municipal Court: Client was charged with 39:4-50 Driving While Intoxicated, 39:4-88B Failure to Maintain Lane, 39:3-40 Driving While Suspended, and 39:3-29 Failure to Exhibit Documents resulting in an incident from 2004. Client had since moved to Missouri and was unable to renew his driver’s license in that state due to the failure to appear in New Jersey.

Result: The attorney requested discovery including the pre incident and post incident Breathalyzer Certifications. Due to the age of the case, the State was unable to produce them and Attorney’s motion to dismiss the case was granted. The Court fined the client $1,500 for contempt on the failure to appear.

2013 – Municipal Court: Client drove off the road and struck a fire hydrant and tree. She failed a field sobriety test and was arrested. The Client was observed for the requisite twenty minutes and then the officer attempted to give her the Alcotest. She provided the officer with six breath samples, five of which generated an error of improper sample size. At this time she refused to give any more samples. Client was charged with 39:4-50 Driving While Intoxicated, 39:4-50.2 Refusal, 39:4-96 Reckless Driving, 39:4-88b Failure to Maintain Lane, 39:4-97.3 Operating a Vehicle While Using a Cellphone, 39:3-76.2 Failure to Wear a Seatbelt, 39:3-29B Failure to Exhibit Registration, and 39:3-29C Failure to Exhibit Proof of Insurance. Client was facing 7 points on her license and a 3 month suspension of driving privileges as well as a 7 to 12 month suspension on the Refusal.

Result: Attorney challenged the proper functioning of the machine with respect to the “Minimum Volume Not Achieved” error message and obtained a dismissal of the Refusal charge. Client pled guilty to a lower tier DWI received a 3 month suspension of driving privileges and 12 hours IDRC along with $546 in court fines and fees. All other charges were dismissed.

2013 – Municipal Court: Client unfortunately drove straight across the middle instead of around a traffic circle. She was pulled over by a police officer, failed the field sobriety tests, and was placed under arrest. She was administered an Alcotest with a .20% BAC result. Client was charged with 39:4-50 Driving While Intoxicated, 39:4-82.1 Driving over a Barrier, 39:4-88 Failure to Maintain a Lane, and 39:4-96 Reckless Driving. Since .20% BAC is an upper tier DWI, Client was facing a 7 to 12 month suspension of driving privileges along with 7 points.

Result: Attorney argued that based upon the time of her arrest and the time the Alcotest was administered, it would have been impossible for the police officer to continuously observe her for 20 minutes prior to administration of the Alcotest as required the New Jersey Supreme Court in State v. Chun. The Court dismissed 39:4-82.1, 39:4-96, and 39:4-88 and amended the 39:4-50 to a lower tier DWI. Client paid $665 in fines and court fees. There was a 3 month suspension of driving privileges and 12 hours IDRC.

2013 – Municipal Court: Client was pulled over for going 92 in a 55 mph zone. While questioning the Client about his speed, the Officer smelled alcohol and proceeded with a field sobriety test. The Client failed the test and was transported to the Police Station. A standard 20 minute observation was reportedly observed and the Alcotest was given with a .13% BAC (.08% is the legal limit). Client was charged with an upper tier 39:4-50 Driving While Intoxicated. Client was facing a 7 to 12 month suspension of driving privileges. The client also received a number of motor vehicle summons.

Result: Attorney obtained an expert report indicating that an analysis of the Computer Assisted Dispatch Report (CAD) and the Alcohol Influence Report (AIR) raised considerable doubt that the the 20 minute observation period was properly conducted. It also challenged the sufficiency of the 2 minute lock out period between the control test and the first breath sample taken on the client. Based upon this, the upper tier DWI was reduced to a lower tier DWI with a 3 month suspension of driving privileges and a dismissal of all other charges.

2013 – Municipal Court: Police responded to a call that a women, later identified as the Client, was unresponsive in a running vehicle in the middle of an intersection. After multiple attempts at waking up the Client, the Officer opened the car door to check for a pulse. She was woken up and failed field sobriety tests. Her Alcotest reading was .08% BAC and she was charged with 39:4-50 Driving Under the Influence and 39:4-96 Reckless Driving.

Result: Attorney obtained an expert report indicating that the Black Key Temperature Probe used in the calibration of the Alcotest did not have a serial number properly recorded on the calibration sheet and there was no way of determining what probe was actually used in the calibration. Based upon this the Client was found Not Guilty of 39:4-50 Driving While Intoxicated. The client was found guilty of 39:4-96 Reckless Driving and had her driving privileges suspended for 3 months. She paid $489 in fines and court fees.