Warren County DWI News: Is Smelling for Alcohol on a New Jersey Motorist a “Police Interrogation”?

As anyone who has ever been arrested or even convicted of driving while intoxicated will likely know that many times a police officer will testify he detected the odor of alcohol on the motorist’s breath prior to a drunk driving arrest. While this statement is usually not enough to convict a driver of DWI, it can be sufficient to prompt the officer to ask the driver to exit his or her vehicle and perform several field sobriety tests — and from that a drunken driving arrest could be forthcoming.

As New Jersey drunk driving and drug DUI defense lawyers, I and my staff have represented numerous individuals accused of driving under the influence of alcohol, prescription medication, and even illegal substances like marijuana. Many of these people believed that they were not impaired at the time of their arrest. Still, when a patrolman states under oath that a driver smelled of beer, wine or hard liquor, it can seem as if the prosecution has a solid case against the defendant.

Earlier this fall, the Appellate Division of the Superior Court of New Jersey overturned a lower court ruling that was apparenlty pinned on the argument that a police officer who sniffed the breath of an underage teen at a party in Independence, NJ, provided sufficient notice that the individual had certain rights. The rights that were allegedly implied by the officer’s “sniff test” were the young man’s Miranda Rights; the lower court that rendered the guilty verdict said the act of sniffing for the odor of alcohol was akin to announcing that the suspect had the “right to remain silent.”

During the police investigation at that party in 2009, the young man in question reportedly stated that he only had one drink. Being under legal drinking age, he was arrested and later convicted by the lower court. The appellate ruling essentially said that the police did not provide the proper advising of rights to that individual.

As most everyone knows — at least those who have seen a police drama on TV or at the movies — reading a suspect his or her “rights” is one of the most important aspects of a police arrest. With this latest ruling (State of New Jersey v. Zeb Koch), the higher court has said that a patrolman’s sniffing of that individual’s breath was an example of a police interrogation that actually required instructing the young man of rights under the Miranda law.

In this particular case, police had responded to complaints from neighbors of a party taking place at a residence. Many of the attendees apparently exited the party when police officers arrived, but those who did stay were reportedly lined up for what could be described as an impromptu police interrogation.

It appears that the appellate court agreed, stating that the sniffing of the partier’s breath was “clearly in a custodial setting,” and as such that act of smelling for alcohol was tantamount to questioning a detainee. Since court records showed that the young man was never read his Miranda rights, the defendant’s statement that he only had one drink had to be suppressed, which led to the appellate court’s overturning of the earlier conviction.

How this might apply to drunken driving arrests will become more evident as time goes on. As stated earlier, police officers already use the detection of an alcoholic odor as the basis for further questioning and field sobriety field testing of a motorist. Is being pulled over by a police officer for a traffic-related violation necessarily putting a driver in a “custodial setting”? Do the questions of why a motorist was repeatedly weaving across a lane marker or ignoring posted speed limits require the need for prior Mirandizing?

Anyone can ask these questions, but it takes a qualified DWI attorney to put everything in perspective. All the more reason to consult a legal professional whenever one has been charged with drinking and driving.

You have the right to remain…pungent?, WSJ.com, October 4, 2011

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