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FREQUENTLY ASKED DWI QUESTIONS
1) What do police officers look for when searching for
drunk drivers on the highways?
The following is a list of symptoms in
descending order of probability that the person observed
is driving while intoxicated. The list is based upon
research conducted by the National Highway Traffic
Administration:
Turning With a Wide Radius;
Straddling Center of Lane Marker;
"Appearing to be Drunk";
Almost Striking Object or Vehicle;
Weaving;
Driving on Other Than Designated Highway;
Swerving;
Speed More Than 10 mph Below Limit;
Stopping Without Cause in Traffic Lane;
Following Too Closely;
Drifting;
Tires on Center or Lane Marker;
Braking Erratically;
Driving into Opposing or Crossing Traffic;
Signaling Inconsistent with Driving Actions;
Slow Response to Traffic Signals;
Stopping Inappropriately (Other Than in Lane);
Turning Abruptly or Illegally;
Accelerating or Decelerating Rapidly;
Headlights Off;
Incidentally, speeding is not a symptom of DUI; because
of quicker judgment and reflexes, it may indicate
sobriety.
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2) If I'm stopped by a police officer
and he asks me if I've been drinking, what should I say?
You are not required to answer
potentially incriminating questions. A polite "I would
like to speak with an attorney before I answer any
questions" is a good reply. On the other hand, saying
that you had one or two beers is not incriminating: it
is not sufficient to cause intoxication -- and it may
explain the odor of alcohol on the breath.
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3) Do I have a right to an attorney
when I'm stopped by an officer and asked to take a field
sobriety test?
In New Jersey, there is no right to
speak to an attorney until after you have submitted to
blood or breath testing at the station (or have refused
to do so).
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4) What is the officer looking for
during the initial detention at the scene?
The traditional symptoms of
intoxication taught at the police academies are:
Flushed face;
Red, watery, glassy and/or bloodshot eyes;
Odor of alcohol on breath;
Slurred speech;
Fumbling with wallet trying to get license;
Failure to comprehend the officer's questions;
Staggering when exiting vehicle;
Swaying/instability on feet;
Leaning on car for support;
Combative, argumentative, jovial or other
"inappropriate" attitude;
Soiled, rumpled, disorderly clothing;
Stumbling while walking;
Disorientation as to time and place; and/or
Inability to follow directions;
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5) What should I do if I'm asked to
take field sobriety tests?
There are a wide range of field
sobriety tests (FSTs), including heel-to-toe,
finger-to-nose, one-leg stand, horizontal gaze nystagmus,
alphabet recitation, modified position of attention (Rhomberg),
fingers-to-thumb, hand pat, etc. Most officers will use
a set battery of three to five such tests.
Unlike the chemical test, where refusal to submit may
have serious consequences, you are not legally required
to take any FSTs. The reality is that officers have
usually made up their minds to arrest when they give the
FSTs; the tests are simply additional evidence which the
suspect inevitably "fails". Thus, in most cases, a
polite refusal is appropriate.
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6) Why did the officer make me follow
a penlight with my eyes to the left and right?
This is the "horizontal gaze nystagmus"
test, a relatively recent development in DUI
investigation. The officer attempts to estimate the
angle at which the eye begins to jerk ("nystagmus" is
medical jargon for a distinctive eye oscillation); if
this occurs sooner than 45 degrees, it theoretically
indicates a blood-alcohol concentration over .05%. The
smoothness of the eye's tracking the penlight (or finger
or pencil) is also a factor, as is the type of jerking
when the eye is as far to the side as it can go.
This field sobriety test has proven to be subject to a
number of different problems, not the least of which is
the non-medically trained officer's ability to recognize
nystagmus and estimate the angle of onset. Because of
this, and the fact that the test is not accepted by the
medical community, it is not admissible in many states ;
it is, however, admissible in New Jersey.
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7) Should I agree to take a chemical
test? What happens if I don't?
There are three adverse consequences
to refusing to submit to a breath or blood test (or
urine if neither are available or if drugs are
suspected):
Your driver's license will be suspended for six (6)
months to one year in addition to the suspension for DWI.
If this is a second offense, the suspension is for two
(2) years;
A refusal, if alleged in the complaint, carries a
mandatory minimum jail sentence.
The fact of refusing can be introduced into evidence at
trial as evidence of "consciousness of guilt". Of
course, the defense is free to offer other reasons for
the refusal, such as fear of needles or y the
traditional offense will be charged.
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8) Can I represent myself? What can a
lawyer do for me?
You can represent yourself -- although
it is not a good idea. "Drunk driving" is a very complex
field with increasingly harsh consequences. There is a
minefield of complicated procedural, evidentiary,
constitutional, sentencing and administrative license
issues.
What can a lawyer do? Nothing (or worse) if he is not
qualified in this highly specialized field -- no more
than a family doctor could help with brain surgery. A
qualified attorney, however, can review the case for
defects, suppress evidence, compel discovery of such
things as calibration and maintenance records for the
breath machine, have blood samples independently
analyzed, negotiate for a lesser charge or reduced
sentence, obtain expert witnesses for trial, contest the
administrative license suspension, etc.
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9) What is the punishment for drunk
driving?
Generally speaking, in New Jersey a
first offense with no "enhancements" (see #10) will
involve a fine of not less than $250.00, nor more than
$400.00, 6 months to one year in addition to the DMV
suspension, and attendance at IDRC for 6 to 12 hours.
For a second offense, jail will almost certainly be
required. Additional punishment may involve interlock
devices, AA meetings, and/or impounding of the vehicle.
For a second violation, a person shall be subject to a
fine of not less than $500.00 nor more than $1,000.00,
and shall be ordered by the court to perform community
service for a period of 30 days, which shall be of such
form and on such terms as the court shall deem
appropriate under the circumstances, and shall be
sentenced to imprisonment for a term of not less than 48
consecutive hours, which shall not be suspended or
served on probation, nor more than 90 days. The driver
shall also forfeit his right to operate a motor vehicle
over the highways of this State for a period of two
years upon conviction.
For a third or subsequent violation, a person shall be
subject to a fine of $1,000.00, and shall be sentenced
to imprisonment for a term of not less than 180 days
except that the court may lower such term for each day,
not exceeding 90 days, served performing community
service in such form and on such terms as the court
shall deem appropriate under the circumstances. The
driver shall also forfeit his right to operate a motor
vehicle over the highways of the State for 10 years.
A person who has been convicted of a previous DWI
violation need not be charged as a second or subsequent
offender in the complaint made against him in order to
render him liable to increased punishment as a repeat
offender. But if the second offense occurs more than 10
years after the first offense, the court shall treat the
second conviction as a first offense for sentencing
purposes and if a third offense occurs more than 10
years after the second offense, the court shall treat
the third conviction as a second offense for sentencing
purposes.
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10) What is a sentence "enhancement"?
New Jersey Law increases the
punishment in drunk driving cases if certain facts
exist. The most common of these is an earlier conviction
for the same or a similar offense within ten years of
the current offense. Other commonly encountered
enhancements (which must usually be alleged in the
complaint) include:
A child was in the car at the time;
The defendant was traveling 20 or 30 miles over the
speed limit at the time;
The blood-alcohol concentration was over .20%;
The defendant refused to submit to a chemical test;
and/or,
There was property damage or injury;
The existence of any personal injury caused by drunk
driving elevates the offense to a felony. A death can
trigger manslaughter or even, if special circumstances
exist, murder charges.
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11) What is a "rising BAC defense"?
It is unlawful to have an excessive
blood-alcohol concentration (BAC) at the time of DRIVING
-- not at the time of being TESTED. Since it takes
between 30 minutes and 3 hours for alcohol to be
absorbed into the system, an individual's BAC may
continue to rise for some time after he is stopped and
arrested.
Commonly, it is an hour or more after the stop when the
blood, breath or urine test is given to the suspect.
Assume that the result is .10%. If the suspect has
continued to absorb alcohol since he was stopped, his
BAC at the time he was driving may have been only .07%.
In other words, the test result shows a blood-alcohol
concentration above the legal limit -- but his actual
BAC AT THE TIME OF DRIVING was below. New Jersey Law
does not permit extrapolation back to the time of
driving. However, the test must be given to the suspect
within a reasonable time after the stop.
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12) What is "mouth alcohol"?
"Mouth alcohol" refers to the
existence of any alcohol in the mouth or esophagus. If
this is present during a breath test, then the results
will be falsely high. This is because the breath machine
assumes that the breath is from the lungs; for complex
physiological reasons, its internal computer multiplies
the amount of alcohol by 2100. Thus, even a tiny amount
of alcohol breathed directly into the machine from the
mouth or throat rather than from the lungs can have a
significant impact.
Mouth alcohol can be caused in many ways. Belching,
burping, hiccupping or vomiting within 20 minutes before
taking the test can bring vapor from alcoholic beverages
still in the stomach up into the mouth and throat.
Taking a breath freshener can send a machine's reading
way up (such products as Binaca and Listerine have
alcohol in them); cough syrups and other products also
contain alcohol. Dental bridges and dental caps can trap
alcohol. Blood in the mouth from an injury is yet
another source of inaccurate breath test results:
breathed into the mouthpiece, any alcohol in the blood
will be multiplied 2100 times. A chronic "reflux"
condition from gastric distress or a hiatal hernia can
cause elevated BAC readings.
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13) What defenses are there in a DUI
case?
Potential defenses in a given drunk
driving case are almost limitless due to the
complexities of the offense. Roughly speaking, however,
the majority can be broken down into the following
areas:
Driving: Intoxication is not enough: the prosecution
must also prove that the defendant was driving. This may
be difficult if, as in the case of accidents, there are
no witnesses to his being the driver of the vehicle.
Probable cause: Evidence will be suppressed if the
officer did not have legal cause to(a) stop, (b) detain,
and (c) arrest. Sobriety roadblocks present particularly
complex issues in these areas.
Miranda: Incriminating statements may be suppressed if
warnings were not given at the appropriate time.
Implied consent warnings: If the officer did not advise
you of the consequences of refusing to take a chemical
test, or gave it incorrectly, in some states this may
affect admissibility of the test results -- as well as
the license suspension imposed by the motor vehicle
department.
"Under the influence": The officer's observations and
opinions as to intoxication can be questioned -- the
circumstances under which the field sobriety tests were
given, for example, or the subjective (and predisposed)
nature of what the officer considers as "failing". Also,
witnesses can testify that you appeared to be sober.
Blood-alcohol concentration. There exists a wide range
of potential problems with blood, breath or urine
testing. "Non-specific" analysis, for example: most
breath machines will register many chemical compounds
found on the human breath as alcohol. And breath
machines assume a 2100-to-1 ratio in converting alcohol
in the breath into alcohol in the blood; in fact, this
ratio varies widely from person to person (and within a
person from one moment to another). Radio frequency
interference can also result in inaccurate readings.
These and other defects in analysis can be brought out
in cross-examination of the state's expert witness,
and/or the defense can hire its own forensic chemist.
Testing during the absorptive phase: The blood, breath
or urine test will be unreliable if done while you are
still actively absorbing alcohol (it takes 30 minutes to
three hours to complete absorption; this can be delayed
if food is present in the stomach). Thus, drinking "one
for the road" can cause inaccurate test results.
Regulation of blood-alcohol testing: The prosecution
must prove that the blood, breath or urine test complied
with state requirements as to calibration, maintenance,
etc.
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