FAQ: NJ Drunk Driving Arrests and the Consequences of a DWI Conviction — Part Five

For those individuals who find themselves on the wrong side of the law, that is, a motorist who has been arrested for a drunken driving offense, the immediate issue at hand is often trying to locate a competent DWI-DUI attorney to represent oneself against the local municipal prosecutor who is pressing the charges against him. To put it in simple terms, if your turn in the DWI barrel has come, now is the time for action, not later.

As Garden State drunk driving attorneys, my colleagues and I have a very good track record of defending motorists who have been charged with some kind of impaired driving. Whether these accusations involve the consumption of alcohol or the use of legal narcotic medications, or even illegal substances, the need for a qualified legal professional is always a priority. Let it be said at this juncture that my firm in no way condones any kind of impaired operation of a motor vehicle, be it a car, commercial truck, motorcycle or watercraft. From our point of view, the best defense is a good offense, and the best way to avoid a DWI or DUI is to avoid drinking or taking drugs any time one expects to be driving on New Jersey roadways.

As recognized experts in the field, my legal team gets a lot of questions from prospective clients who are just beginning to learn about the intricacies of DWI law. In the interests of edifying our readers, we feel that learning something now about drunk driving defense may come in handy in the future, especially if someone finds himself in a difficult situation involving a drunk driving arrest.

The following is another part in a multi-part series of frequently asked questions (FAQs) on the possible consequences arising from a DWI or DUI conviction. Whether a driver is arrested for operating a car, truck or motorcycle while under the influence of alcohol, impaired by doctor-prescribed drugs, or even a controlled dangerous substance (also known as a CDS), the danger of entering a courtroom by oneself and relatively unprepared is quite high.

Considering the multitudinous ways that a motorist can end up being pulled over for even the most minor traffic infraction, the opportunity to be arrested and charged with DWI-DUI is at least as varied. Each week, dozens and dozens mostly law-abiding drivers find themselves in police custody and being asked to submit to a blood-alcohol content (BAC) test. Some of them may not be guilty at all, while others may feel there were extenuating circumstances. In any case, here some questions and answers that may help fill the gaps:

Q: What kind of DWI defense is the most effective?

A: It must be understood that number of possible avenues for a drunken driving defense can be almost limitless due to the complexity of New Jersey’s DWI laws. However, it could be said that the majority of DWI-DUI defense strategies could be broken out as follows:

Who was driving?
When one realizes that proving whether a person was intoxicated is not enough to gain a conviction, the clouds can seem to part somewhat. The burden in most any drunk driving case is on the prosecution in that the state must also prove that the defendant was, in fact, driving. This can actually be a difficult hurdle, especially with some kinds of traffic accidents, where no witnesses to the crash are available and the evidence of this person or that having been the driver at the time of the accident may be purely conjecture on the prosecution’s part.

Probable Cause
Did the police actually have an articulable reason for stopping the driver in the first place? Evidence of intoxication can end up being suppressed by the court if it can be shown that the patrolman did not have legal cause to A) stop the defendant’s vehicle, B) detain the driver, and C) place the person under arrest. It should be noted that sobriety checkpoints present particularly complex issues for many a municipal prosecutor.

Miranda Rights
Incriminating statements by the defendant at the time of his or her arrest could be suppressed by the court if warnings were not given at the appropriate time by the police.

Being “Under the influence”
A police officer’s observations and opinions as to the defendant’s state of intoxication at the time of the traffic stop can be brought into question. For example, the local weather and roadway conditions as well as the circumstances surrounding the administration of typical field sobriety tests can lead to questionable results based on the subjective (and some might suggest, predisposed) nature of what a patrolman considers as “failing”. From the standpoint of the defense, a witness can be beneficial for one’s case if he or she can testify that the driver appeared to be sober at the time.

Blood-Alcohol Concentration (BAC)
There is a rather wide range of potential problems when it comes to blood, breath or urine testing. Take “non-specific” analysis as one example. Most breathalyzer-type machines will register a variety of chemical compounds found on a person’s breath as alcohol, even when there is little or no alcohol extant. Furthermore, breath-testing machines typically assume a standard ratio when converting “breath alcohol” into blood alcohol. In actuality, the ratio is not static and can vary widely from one person to the next; and even from one moment to the next in the same individual. Radio frequency interference (RFI) has been known to cause erroneous or inaccurate BAC readings.

Q: What is “mouth alcohol”?

A: So-called “Mouth alcohol” refers to the existence of any residual alcohol in the mouth or esophagus. If alcohol is present in the subject’s mouth during a breathalyzer test, the BAC readings will end up being inaccurate and generally cause a falsely high BAC result. This happens because the breathalyzer assumes that the breath is only coming from the lungs. Even a small amount of alcohol in the subject’s mouth or throat can throw off the BAC readings by a significant amount.

Mouth alcohol occurs for many reasons. Belching, burping, hiccupping or vomiting within 20 minutes prior to submitting to a breathalyzer test can bring liquid and vapor from alcoholic beverages residing in the stomach back up into the subject’s mouth and throat. Interestingly, using a breath freshener, such as Binaca or Listerine can skew the BAC readings by a large amount. In fact, cough syrup and other alcohol-based medicinal products can also cause trouble for breathalyzer devices.

Q: Can a motorist be sentenced to jail if convicted of a DWI?

A: It is relatively safe to say that most first-time DWI offenders will not face a jail sentence if convicted of drunk driving. Even in cases where the defendant registered a high BAC reading at the time of the arrest, jail time will likely not be a consideration. However, depending on the circumstances, and the judge, the court may order some community service time and may even impose a heavier fine.

Following a conviction for a second-time offense, most judges will still not order jail time, although it is not uncommon for the court to order a defendant to attend municipal courtroom hearings for a number of days in lieu of any jail time. Keep in mind that for third-time offenders convicted of DWI, there is a mandatory six-month jail term. Having an experienced DWI defense attorney on one’s side can help in these kinds of multiple-DWI situations.