Being stopped for driving while intoxicated (DWI or DUI) during Thanksgiving, Christmas or New Year's is one of the most dreaded events in an otherwise law abiding citizen's life. It can affect anyone at anytime and it can have drastic effects upon one's life. It does not matter whether the driver is rich, poor, good or bad. It also does not matter what time of day or night it is or even what season it is. The best way to defend oneself against a DWI/DUI is obviously to never drink and drive. While it is not illegal for an adult to drink and drive in New Jersey it is illegal for an adult to drink to excess and drive in New Jersey.
The two types of DWI stops in New Jersey.
There are two basic types of DWI/DUI stops in New Jersey. The first is a motor vehicle stop based upon a motor vehicle violation and the second is a stop based upon a DWI/DUI checkpoint. Under both scenarios, after the stop itself, the actions of the police are generally the same. Because the vast majority of all DWI stops in New Jersey occur based upon a motor vehicle violation, that will be the focus here.
Presenting documents during the DWI stop in New Jersey.
After the stop the police will generally ask for your license, registration and insurance information. Before getting in one's car it is critically important that your license, registration and insurance are all valid and up to date. It is also critically important that all of these documents are readily accessible.
After the stop the police are required to meet a certain level of suspicion in order to administer DWI field sobriety tests. One very common mistake drivers make is to nervously fumble for documents. The nervous and fumbling driver is more suspicious than the calm and collected driver. The minute or two required to check and place one's documents in an accessible place before beginning one's journey can pay big dividends in the event of a motor vehicle stop. One's documents should not be thrown in the glove compartment along with 2, 3 or 4 years worth of expired documents. A calm but swift retrieval of your documents can help dispel any suspicion the police officer may have about a driver during the critical early phases of a DWI stop.
Questioning during the DWI stop in New Jersey.
The next thing that will happen is the officer will likely ask you if you have been drinking. When asked this question (and during the whole DWI stop) the best course is to be polite and non-threatening. A defensive, offensive or challenging driver will again heighten the officer's suspicion. The polite, non-threatening driver will help put the officer at ease and will help to dispel any suspicion the officer may have about the driver.
The question still remains, how should one answer the question "have you been drinking tonight?" There is no right or wrong answer to this question. If the driver lies, it increases the likelihood the driver will be arrested for DWI. If the driver declines to answer (which the driver is legally permitted to do) it may also increase the likelihood that the driver will be arrested. The answer to this vexing question lies in understanding the process. While the police are trying to determine whether the driver is under the influence, they are also simultaneously building a case for charging the driver with a DWI. Thus if the driver answers "I had one beer at Joe's Bar & Grill", the police will use this information, along with the driver's attitude, demeanor and other factors such as the smell of alcohol, bloodshot eyes and fumbling for credentials to determine whether to go to the next step in the process, the field sobriety tests. In the event the driver is ultimately charged with DWI, an admission of drinking at a bar will become part of the police report and it will help support the DWI case against the driver.
The legal standard necessary to conduct field sobriety tests in New Jersey.
In New Jersey the police are entitled to ask a driver to get out of his car
after a motor vehicle stop in order to further investigate the offense. The
question then becomes, what additional level of proof do the police
need to administer field sobriety tests? If the original basis for the stop was
speeding, for example, the police can expand their investigation of the speeding
offense if during the course of the motor vehicle stop the police develop
suspicions unrelated to the speeding violation. The legal standard required to
administer field sobriety tests is a "reasonable articulable suspicion" that the
driver was involved in unlawful activity beyond that which initially justified the
This is where the observations of the officer come into play. If the driver was nervous and fumbled for his credentials, had blood shot eyes, smelled of alcohol, was defensive and challenged the police officer's questions, one or more of these factors can be used to justify an officer's decision to administer field sobriety tests. In addition, if the driver lied when asked whether he was drinking, if the driver was evasive when asked this question or if the driver admitted to having one beer at Joe's Bar and Grill, these factors can also be used to justify field sobriety tests.
Taking field sobriety tests during a DWI stop in New Jersey.
In New Jersey, a number of different field sobriety tests are used. Many of these tests are difficult to perform under ideal conditions. The legal standard the police must reach to justify the use of field sobriety tests is "reasonable articulable suspicion." In order to arrest for a DWI/DUI, the police need a higher level of proof - "probable cause" - which they often secure by use of the field sobriety tests. If the driver does well on the field sobriety tests then there is a possibility that the driver can escape an arrest for a DWI/DUI. If he does poorly, he will likely be arrested.
Under the stress of a possible arrest for DWI these psychophysical tests can be extremely difficult to perform. It is important to understand that the field sobriety tests will often be captured on videotape in New Jersey. It is also important to understand that the shoes the driver is wearing (dress shoes, sneakers, high heels, flats) and the surface the driver is performing the tests on (flat, inclined, rocky, wet or snowy) will have an affect upon performance. While the police control the type of tests administered, there is nothing to prevent the driver from making suggestions about the testing conditions. Even if the suggestions are denied, the driver will be making a record that may assist a DWI attorney in explaining the driver's performance on the tests later on. It is critical to understand that if the driver does well on the tests the driver may not be charged. If the driver is charged with a DWI it may be argued later on by a DWI lawyer that there was insufficient probable cause to arrest.
Taking the Alcotest during a DWI stop in New Jersey.
After a DWI arrest the next step in the process is taking the Alcotest. In the State of New Jersey there are two ways to prove a DWI. The first is based upon the observations of the officer. The observations generally include the driver's performance on the field sobriety tests as well as the other observations of the officer outlined above. The other way to prove a DWI in New Jersey is through the use of the Alcotest. The Alcotest is a machine used to calculate blood alcohol content ("BAC"). See Should Courts Rely on Untestable Evidence of DUI. In the State of New Jersey a driver is generally given the opportunity to take the Alcotest after being arrested for a DWI. In New Jersey, a reading of .08% BAC or greater is unlawful. It is generally a good idea to take the Alcotest. See New Jersey's DWI Refusal Statute. If you are stopped for a DWI contact Brickfield & Donahue today for a free consultation.