Every week, hundreds of motorists — both residents and non-residents — are pulled over in the Garden State for any number of moving violations or motor vehicle infractions. These offenses can range from serious offenses down to what many people might describe as inconsequential or even petty infractions. But even those minor violations can come with heavy consequences if a driver has had any alcoholic beverage to drink prior to the traffic stop.
Regardless of whether an arrest for DWI occurs in Hudson County, Middlesex County, Passaic or Ocean, or down in Cape May County, the validity of a DWI arrest can hinge on a totality of the facts presented later in a court of law. Often obtained during the initial traffic stop by the arresting officer, the facts that a prosecuting attorney will likely use against a motorist in a drunken driving case must include some kind of evidence pointing to intoxication on the part of the defendant at the time of the arrest.
As many people who have been through this kind of ordeal already know, the charges for impaired driving can stem from suspected consumption of alcohol, prescription drugs, or illegal substances such as marijuana or cocaine. One thing is important to remember: The degree of inebriation or intoxication must be sufficient to cause a motorist to be unable to safely operate his or her car, truck or motorcycle. There are numerous issues that can arise in order for this standard to be met. These include the following:
Being Under the Influence
It has to be said that DWI arrests must be supported by evidence of intoxication. This has been defined by the Supreme Court as a “substantial deterioration or diminution of the mental faculties or physical capabilities” of an individual through the consumption of an intoxicating substance (such as wine or liquor), or a hallucinogenic, narcotic or habit forming drug.
The “probable cause” requirement can usually be met in part by the arresting officer’s own observations of the motorist and his or her actions and mannerisms. This is to say that the nature of the typical traffic stop — which generally is for a routine violation such as the driver’s inability to maintain his lane or driving a vehicle with a broken or otherwise non-working headlamp or tail lamp — is part and parcel of probable cause. This, in addition to other observations like bloodshot or watery eyes, slurred speech, and disheveled appearance is often cited by the officer in charge as reasonable suspicion supporting further sobriety testing.
As experienced defense attorneys, we generally attempt to provide alternative explanations for a driver’s red eyes or slurred speech. By doing so, we hope to call into question the probable cause surrounding a DWI arrest, which may influence the court to disallow that particular evidence. Many factors, from allergies and fatigue to migraine headaches have been applied to a defense for the aforementioned bloodshot or red eyes.
It must be added here that in terms of drug DUI, lay testimony regarding signs of intoxication have often been limited only to individuals who are accused of being under the influence of alcohol, versus a narcotic or hallucinogenic substance. But this may be changing. When it comes to these types of controlled dangerous substances (CDS), the ruling in the case of State v. Bealor held that a typical patrolman (as opposed to a specially trained drug recognition expert) could, through training and professional experience identify an individual who was under the influence of marijuana.
Expanding on the Bealor case, State v. Sorrentino also held that a common patrolman could also (through his training and experience) identity a person under the influence of drugs, not just weed or pot. It should be mentioned that this latter decision is currently under review on appeal, but this makes it all the more important for anyone charged with a drug DUI to contact an experienced DWI-DUI defense attorney to learn more about his or her rights under the law.
Plain View/Plain Smell Doctrine
If a traffic stop has been made legally, and the validity of that stop is not in question, the next important aspect of a DWI case is typically reviewing the validity of the drunk driving or drug DUI arrest itself. Because almost any police officer making a DWI arrest needs to have incriminating evidence of a driver’s inebriation by beer, wine or another kind of alcoholic beverage, the patrolman’s ability to view the interior of a suspect’s vehicle is often key to obtaining that evidence.
Once a traffic stop is in process, that opportunity to observe the driver and the interior of his or her vehicle is all-important. Any visible evidence of possible intoxication — such as an open container or beer, wine or hard liquor, as well as any drug paraphernalia — will come under the heading of the “plain view” exception. This exception applies to the warrant requirement, which is very familiar to many Americans from movies and TV because of the general understanding that a police officer cannot conduct a search without a warrant.
However, the plain sight exception legally permits an officer to be in an area of observation and, finding evidence “inadvertently,” allows the state to use any evidence of a crime or contraband that was “immediately apparent” to the patrolman. In cases where visual evidence is neither available nor apparent, the law also provides an alternate avenue for the police with what is known as the “plain smell doctrine.”
Plain smell-related evidence can be the odor emanating from the suspect’s vehicle or from the driver himself, which indicates a possible state of intoxication. Common smells such as alcohol on a driver’s breath or the odor or pot (burnt or otherwise) emanating from the suspect’s car or truck are therefore admissible in New Jersey courtrooms as evidence provided several criteria can be met.
Regardless of the situation, there have been cases over the years where expert witnesses have been called by the defense to show that the average policeman’s ability to detect the smell of alcohol is correct less than half of the time. If the prosecution plain smell evidence can be called into question, the defense may be able to throw doubt on the case.
While many people may question the need to retain an experienced DWI defense attorney, understanding and acting on legal issues such as the plain smell doctrine and plain view exception illustrate the importance of having a qualified professional on one’s side, at least if a defendant is serious about fighting a drunken driving case.