Talk to most any person who has been convicted of drunken driving in the Garden State and you will most likely hear about the ordeal of having one’s breath tested in order to obtain a blood-alcohol content (BAC) measurement. As we have explained numerous times in this forum, breath test results are often a key point of evidence for any municipal prosecutor looking to convict a motorist on DWI charges.
There is no doubt that the uninitiated — that is, drivers who have never been stopped by a police officer and arrested for driving while intoxicated — may not have an appreciation for all of the aspects of a drunk driving or drug DUI police stop. As Garden State DWI defense lawyers, my staff can explain to potential clients the various steps that a patrolman or state trooper should take when initiating a traffic stop, evaluating a suspected drunken driver, and making an arrest when an offense is believes to have taken place.
Dozens of drunk driving arrests happen all across New Jersey every week in counties such as Middlesex, Monmouth, Atlantic and Bergen. When a driver is stopped for a moving violation, if the officer in charge observes any signs of impairment, regardless of whether the individual is truly intoxicated, the officer may request that the motorist perform one or more of the standardized field sobriety tests as established by the National Highway Traffic Safety Administration (NHTSA).
Depending on the result of the field sobriety testing, the policeman may place the driver under arrest and take him or her to police headquarters for a breath test and possible booking. As mentioned previously, the results of a breathalyzer test typically tops the list of evidence against a driver. Although there have been challenges to the validity of breath testing devices, New Jersey courts continue to recognize the resulting BAC measurements — from approved devices such as the Alcotest machine — as valid proof of inebriation.
In some instances, a driver may decline to take a breathalyzer test. This is a right that everyone has, but it must be remembered that breath test refusal is a chargeable offense in New Jersey. In fact, a motorist who refuses to take the test will not only be charged with breath test refusal, but he or she will be charged with DWI; these two charges go hand and hand with each other.
Yet, that said, it is important to know that even though these two charges occur together, they can always be addressed in court as separate offenses. If convicted of drunken driving in a courtroom, each charge comes with its own set of rather harsh penalties.
When it comes to fighting a charge of breath test refusal, a New Jersey Appellate Court decision (State v. O’Driscol) established new procedures pertaining to individuals being charged with refusal here in New Jersey. The main point to remember here is that for a refusal charge to be accepted by the court, the prosecution must prove beyond a reasonable doubt the following elements:
— The officer who made the arrest must have had probable cause to believe the driver was operating a motor vehicle while impaired by alcohol — The said operation of that car, truck or motorcycle took place on a public road or quasi-public area — The motorist was, in fact, arrested specifically for that aforementioned motor vehicle operation — The vehicle’s driver refused to submit to the breath test — The request to take the test was made by a patrolman who had reasonable grounds to believe that the motorist had been driving his or her vehicle while intoxicated — The attempted administration of the breath test was conducted in accordance with New Jersey’s legal provisions regarding the implied consent statute
When in doubt about any aspect of your arrest for drunken driving or operating a motor vehicle while under the influence of alcohol or drugs, it is wise to consult with a qualified DWI defense attorney. Most any experienced New Jersey DWI-DUI lawyer should know the DWI laws here in this state. As such, a good DWI attorney will be well aware that anything “substantially” short of an unqualified or unequivocal assent to an officer’s request that a driver take a breathalyzer test will be seen by the court as a refusal to submit to a breath sample.
As most people should be able to appreciate, going it alone in a courtroom may not be the wisest choice, especially when drunk driving penalties are so strict. If you ro someone you know has been arrested and charged with drunken driving, we highly recommend taking advantage of the free, no obligation consults available from most reputable DWI attorneys.