Drunken Driving Defense Update: Prosecutors Can Bring Many Pieces of Evidence Against a DWI Defendant

As New Jersey residents and motorists, most of the general public knows how frequently police stops occur in this state. With a high population count and rather dense urban centers, the Garden State is home to all manner of individuals. And while the average person is more than likely a law-abiding citizen, it is interesting to note how many upstanding people find themselves on the receiving end of a traffic citation during the course of a week, month or year. As New Jersey DWI defense attorneys, my firm has helped dozens upon dozens of drivers who have been accused of operating a motor vehicle while under the influence.

Being arrested for drunken driving — or impaired operation of a motor vehicle due to prescription medication — can be a rattling experience for most people who have otherwise followed the law and maintained a clean record. Sadly, a lot of these accused drunk drivers may not have realized they were impaired, or certainly legally intoxicated by beer, wine or hard liquor. The law provides for rather harsh penalties, even for those whose DWI charge is a first-time offense.

Like any civil or criminal charge, the arresting officer should have some credible evidence for the prosecution to hold up in court as proof of the offense. As defense lawyers, our job is to discredit the source of the evidence or to call into question the accuracy of that evidence. In drunken driving cases there are a number of common pieces of evidence that may be used against an alleged drunk driver in a court of law. These can include the following:

— The manner in which the arresting officer came to stop the defendant’s vehicle. This can include any number of so-called moving violations, from running a stop sign or failing to signal a turn to exceeding the posted speed limit or improper passing; other motor vehicle violations can also trigger a police stop, including a burned-out taillight, improperly displayed license plate or registration tags; even a cracked windshield.

— How a driver appeared — or how he or she acted during any conversation with the officer following the stop — can also be used as evidence by the state in an effort to prove impairment at the time of the arrest. The officer may say that the motorist appeared physically impaired because he was fumbling for his driver’s license and vehicle documentation as the officer approached to suspect’s vehicle. If the driver inadvertently dropped one or more pieces of paperwork while handing it over to the officer, that too can be used to suggest the motorist was drunk.

— The results of a standardized field sobriety test, which people hear so much about, can become one of the major supporting pieces of evidence used against a person who has been accused of DWI or drug DUI. Having a difficult time performing any one of these — such as the walk-and-turn test, one-leg stand test and the horizontal gaze nystagmus test, as well as others — can be used as part of the prosecution’s case against the defendant. It should be noted that there is no penalty for refusal to perform any of these tests.

— Breath test results are the primary evidence used by the state to prove to the court that a driver was legally intoxicated by alcohol at the time of his or her arrest. Known generically as a breathalyzer test, police in New Jersey usually employ the Alcotest 7110 to determine a subject’s breath-derived blood-alcohol concentration (BAC). There are other devices still used, and the defense for each can be slightly different, however which ever machine is used, as the officer calls out the reading, one should try to remember what is stated by the officer.

— Occasionally, for example following an injury accident in which the defendant was hurt during a car crash for which he or she is being charged with DWI, it is not uncommon for the police to have the subject’s blood tested at the hospital to determine BAC. Even in cases where there was no traffic accident, some accused drunken drivers have been known to stop by a hospital after an arrest and get their blood tested for their own evidence. This could help a defendant later, depending on the results; any good drunk driving defense attorney will know if that piece of evidence will help his client’s case.

— Finally, one of the (relatively) more recent additions to the state’s evidence list can be the video recording taken by the dashboard-mounted camera in many police vehicles these days. The prosecuting attorney may present video footage of the arrest as supporting evidence for his or her case. It’s important to note that arresting officers who ride with a dash-cam on their vehicle usually also have a wireless microphone on their person to record the audio during an arrest. To say that anyone being stopped by an officer should be on his best behavior goes without saying, especially if the incident leads to an arrest and formal charges.

As one closing cautionary note, it is important to remember that even before being signaled to stop by a patrolman for whatever offense, that officer is collecting information that can later be used against you in a court of law. Whether it is recorded by video, noted on paper, or committed to memory by the officer for later dissemination, it can all be used to prosecute you in a courtroom.

Granted, some of this evidence may not be sufficient — which has to do with the type of evidence and the circumstances under which it was collected — but any actions, statements, gestures or motions a motorist might make prior to and during that police stop will be sifted through and likely be used against you by the prosecuting attorney. Having a qualified and experienced drunk driving defense lawyer on one’s side is never a bad idea; especially when the stakes can be so high and the penalties so costly.