Stephen A. Gravatt, Esq.
Attorney
565 NJ 35
Middletown, New Jersey 07748
(732)-337-7922
Email: pipking@comcast.net
DWI-DUI Law – Criminal defense attorney defends charged with DWI-DUI.
N.J.S.A. 39:4-50 prohibits one from operating a motor vehicle on the roads of New Jersey while impaired by ingestion of intoxicating liquors and/or hallucinogenic drugs. Any attorney can advise that one who is charged with DWI or DUI will likely need to retain an experienced attorney to have a chance to successfully defend.
In my practice as an attorney with 30 years experience I have encountered two broad categories of substances which can cause impairment. The first is alcohol and the second is controlled dangerous substances (CDS), whether prescription drugs or recreational drugs.
Two quintessential elements which (together) constitute DWI or DUI.
- Impairment by reason of ingestion of alcohol or a controlled dangerous substance (CDS); and
2. Operation of a motor vehicle in New Jersey.
HOW DO THE POLICE DETERMINE WHEN ONE IS IMPAIRED?
The touchstone is that a police officer must have probable cause to believe that an offense has been committed by the operator of a motor vehicle before the police officer may lawfully stop the vehicle. Oftentimes I challenge the police officer’s stop of the motor vehicle as a violation of the 4th Amendment against unreasonable search and seizure. That is an appropriate defense if the attorney determines lack of probable cause for the stop.
One scenario I see often as an experienced attorney is apprehension by police through observation of an underlying traffic offense. (think speeding, failure to observe traffic signal, improper lane change, etc…) It is very common for a client to describe a scenario where the police officer stops the operator’s motor vehicle and when the operator rolls down the driver’s side window the police officer detects the odor of alcohol, blood shot eyes, slurred speech, fumbling while looking for driver’s license, insurance i.d. card, registration, etc… He then asks the operator if he or she has consumed an alcoholic beverage that day. Probable cause has then been established to commence Standardized Field Sobriety Testing (SFST), which are a series of divided attention tests (balance and coordination testing) designed by the National Highway Traffic Safety Administration (NHTSA) to determine whether the operator is impaired by alcohol consumption. I have worked on countless cases in which the defendant was pulled over for a traffic offense that the police bootstrapped into a DWI or DUI. NHTSA studies show that standardized field sobriety tests SFST are accurate less than 67% of the time.
Another common scenario I often see is apprehension at the scene of a motor vehicle accident. Here the vehicles are already parked and when a phone is call made to police by a party involved in a motor vehicle collision to report the accident and request help, the police arrive on the scene. Police immediately start interviewing each of the parties. The lack of probable cause defense isn’t viable once the vehicles are parked and alcohol is detected by the police. Under this scenario the police officer can start DWI or DUI standardized field sobriety testing SFST testing immediately if he believes it could be a factor in the collision.
A third scenario I often encounter is apprehension based upon an anonymous 911 caller who reports to police dispatch that he or she has witnessed a motor vehicle being operated in an erratic manner. If there is a sufficient factual nexus to determine an accurate description of the motor vehicle and location of operation, a police officer has probable cause to stop and search that motor vehicle even if he does not actually observe conduct which would justify the stop. Ergo the probable cause defense is not available. There is also adverse case law against drivers that allows police to believe an unidentified 911 caller and stop an operator of a motor vehicle without actual probable cause. These 911 callers are protected by police dispatch procedures and usually cannot be identified and examined under oath at trial.
WHAT ARE STANDARDIZED FIELD SOBRIETY TESTS?
While an attorney will advise that NHTSA contends that standardized field sobriety tests (SFST) are divided attention tests which reliably measure whether the operator of the motor vehicle is impaired by a blood alcohol content of .10% or more, every experienced DWI or DUI lawyer will tell you that police who administer the testing often fail to properly instruct the suspect and of fail to properly score the results and that even if properly administered and scored are only accurate about 66% of the time.
SFST consist of three (3) divided attention or balance and coordination excercises:
- The Horizontal Gaze Nystagmus test; and
- The Heel To Toe Touch Walk; and
- The Single Raise Leg test
They are usually administered right on the side of the road but an experienced lawyer has also obtained video of SFST being administered at the municipality’s police station. As an experienced DWI or DUI attorney, I am often frustrated by the lack of availability of any video of the SFST. Police sometimes record video of the testing, but are not required by law to do so. Video of the SFST help lawyers assess the clients actual state of impairment and sufficiency of the instructions given and interpretation of the clues. As an attorney I am always suspicious when a video is not available in discovery.
The first thing a defense attorney should know to defend competently, is that the police officer is required to give clear instructions to the suspect on how to properly perform each test. Often times the instructions are incomplete or given in a hasty manner so that the suspect is confused and forced to perform complex balance and coordination exercises without a fair understanding of how to perform correctly. If video of SFSTs exists it helps the lawyer determine if the instructions were fairly and accurately given by police to the suspect.
The second thing a defense attorney should know is how to evaluate the police officer’s scoring of the suspect’s performance. At the conclusion of each test the police officer grades the performance and assigns “clues” to score performance. An experienced attorney knows that too many clues means a failing score. Generally, there are six clues for each SFST administered. Two or more failed clues on any of the SFST is a failing grade that indicates alcohol impairment of greater than .10% and therefore merits Alcotest machine breath testing. If the police officer believes that sufficient clues have been established to conclude that the suspect has performed the SFST unsatisfactorily, he or she will arrest the suspect and transport him or her to the police station for Alcotest testing. As an experienced DWI attorney I can tell you that I have encountered many instances of police error in both administration of the test instructions and interpretation of the clues. Lawyers know that some individuals are not physically able to adequately perform the SFST sober, due to factors such as poor balance, obesity, poor physical condition. Every lawyer who defends DWI or DUI cases has encountered suspects who were not driving impaired but were accused of filing SFST.
If police determine that the suspect failed SFST, the suspect will be taken into custody and asked to voluntarily submit to a mandatory Alcotest machine breath test to determine his or her blood alcohol content (BAC). One may refuse to submit to the Alcotest but then will be charged with both Refusal and DWI or DUI. While an experienced attorney can usually persuade the sentencing judge to impose sentence as “concurrent”, meaning no increased driver’s license suspension, but increased fines, New Jersey does not reward operators of motor vehicles for refusing to allow the State to determine one’s blood alcohol content BAC.
If you blow into the Alcotest machine, readings of your blood alcohol BAC will be determined. Later, arguments about the reliability of the readings, police error, machine error can be made.
If the attorney determines through discovery that the Alcotest machine says that the blood alcohol content BAC is in excess of .08, you are “per se” in violation of the legal limit the State says you may ingest while operating a motor vehicle on the roads of New Jersey. Under these circumstances your DWI attorney must retain an expert witness to find police error, machine error, to argue the readings are unreliable and should therefore be suppressed.
If your attorney determines through discovery that the Alcotest machine says the blood alcohol content BAC is under .08, you can still be convicted on “observations”, meaning how poorly you performed SFST. This is where your attorney has to argue improper administration of the test instructions and improper grading of clues.
As an experienced defense attorney, I have seen many times that when a client’s Alcotest results reveal a 0.00% blood alcohol content BAC, the inquiry shifts to whether there is another cause for failure to adequately perform standardized field sobriety tests SFST such as impairment by prescription drugs or recreational drugs. If impairment by controlled dangerous substance CDS is suspected, you may be asked to give a urine sample and submit to a drug recognition expert test (DRE) to determine if your suspected impairment was caused by (CDS). Interestingly, my experience as a DUI lawyer has taught me that refusal to give a urine sample in a CDS DWI or DUI does not constitute a refusal violation of N.J.S.A. 39:4-50a. Please see my previous blog article on CDS-Drug DWI-DUI.
IF CONVICTED, WHAT IS MY EXPOSURE?
As an experience DWI or DUI lawyer, I can advise that consequences of conviction for DWI and/or DUI come in three forms; i.e., monetary penalties, suspension of driving privileges and jail time.
On a first offense if blood alcohol content BAC is more tham .08% but under .10%, its a three (3) month loss of driving privileges, monetary penalties of not less than $250.00 nor more then $400.00, zero (0) to thirty (30) days jail time.
One a first offense if the blood alcohol content BAC is .10% or higher, its a seven (7) to twelve (12) month loss of driving privileges, monetary penalties of not less than $300.00 nor more than $500.00, zero (0) to thirty (30) days jail time.
On a second conviction, less than ten (10) years from the first, if the blood alcohol content BAC is .08% or higher, its a 24 month (2 year) loss of driving privileges, monetary penalties of not less than $500.00 nor more than $1,000.00, and up to ninety (90) days jail time.
On a third of subsequent conviction, less than ten (10) years from the second conviction, if the blood alcohol content BAC is .08% or higher, it’s a ten (10) year loss of driving privileges, monetary penalties of not less than $1,000.00 and mandatory one hundred and eighty (180) days jail time.
There is an important remedy known as a “step down” in the event that your last DWI and/or DUI conviction took place more than ten (10) years ago.
You also should know that (if apprehended) operating a motor vehicle during the time within which your privileges have been suspended for DWI any sentence for that new offense will contain mandatory jail time. If you only have sustained one (1) conviction for DWI and/or DUI the range for jail time would be ten (10) to ninety (90) days. If you have two (2) or more prior DWI and/or DUI convictions the range of jail time would be a mandatory minimum of one hundred and eighty (180)days up to eighteen (18) months. There would be additional fines of up to $1,500.00 per event and additional driver’s license suspension of up to twelve (12) months. If one also causes a collision with personal injury while driving during the suspension period there is additional jail time of not less than fourty five (45)days up to one hundred and eighty (180) days.
DO I NEED TO RETAIN AN ATTORNEY TO REPRESENT ME?
Yes. I have been a New Jersey DWI Attorney and a New Jersey DUI Lawyer for thirty (30) years. I have successfully defended many cases. There are defenses but a great deal of knowledge is required to implement them in a useful manner. Prosecutors are required by the Attorney General to prosecute these cases to conviction and are not authorized to offer downgraded Plea Bargains unless they are unable to prove the allegations. Given the consequences of mandatory sentencing guidelines if convicted, you likely need an experienced attorney to avoid loss of driving privileges and possible jail time.
If you have been charged with an alcohol DWI or DUI, and your blood alcohol content BAC readings are in excess of .08%, your lawyer must retain an expert witness to show that the Alcotest machine was not working properly, the Alcotest results are possibly unreliable and should therefore be suppressed or that police error caused the proofs to be unreliable and the case against you must therefore be dismissed.
If you have been charged with a prescription drug or recreational drug CDS DWI or DUI your attorney must retain an expert witness to show that the conclusions of the urine labs and the drug recognition expert DRE are unreliable and the case against you must therefore be dismissed.
I have represented many clients during my 30 years of practicing law helping them to avoid conviction, avoid jail time, avoid driver’s license suspension, avoid maximum fines.
If you have been charged with DWI and/or DUI I can help you.
Please contact me for a free initial consultation, an in depth analysis of your charges, reasonable rates and a no nonsense strategy for defending you.
Stephen A. Gravatt, Esq.
(732)-337-7922
www.njdwicriminaldefenseattorney.com
