Prosecution and Defense

Common Police Mistakes in DWI Cases

1. The police make an unconstitutional stop of your vehicle.

The police can’t stop your vehicle on the basis of an anonymous call, or if there is no probable cause. In most cases, the police must stop the driver for some type of moving violation to justify the DWI arrest. If there are no sufficient grounds to substantiate the stop of your vehicle, then make sure that your counsel files a motion to suppress. This is quickly becoming the strongest DWI defense in New Jersey.

2. The police can’t question a person without informing him or her of their Miranda rights.

In many cases the drivers get scared and they confess to drinking and driving. Always be cognizant of the fact that the police must issue a driver their Miranda rights before he or she can be questioned.

3. Stopping a vehicle without probable cause.

The police can’t stop a driver merely because they are suspicious that the person was driving under the influence. The police have to substantiate the traffic stop with a moving violation such as weaving, speeding, or an improper lane change. If the police can’t substantiate any probable cause to justify the stop, then the DWI case will be dismissed.

4. Stopping a vehicle just to check the driver’s license, registration, and insurance.

In many cases the police will stop a vehicle only to check the status of the person’s driver’s license, registration and insurance. If the police then arrest the driver for a DWI, then in many cases a good lawyer can contest the validity of the stop on the lack of any probable cause.

5. Stopping a vehicle for no reason at all.

In many cases the police are really on a “fishing expedition” to try to arrest as many DWI drivers as possible. This type of attitude is especially prevalent on weekends and in the summer. The police must have a valid reason to stop a driver. The common reasons to justify a valid stop are for speeding, weaving, or for an improper turn. If the police have not issued a moving violation to a DWI driver, then in many cases the DWI case will be dismissed because there is no probable cause.

6. Not having their alcotest operation certificate renewed.

A police officer must be qualified by the Attorney General and by the New Jersey State Police to operate and administer an alcotest machine. A police officer who seeks to administer an alcotest(s) must be certified. The certification is essentially a licesnse to conduct breath tests. Like any license it has an expiration date. An alcotest operator’s certificate is only valid for the year in which it is issued, and for the following two years. N.J.A.C. 13:51-1.8(a). In many cases, especially in high crime townships, the police do not keep their breathalyzer certifications up to date.

7. The alcotest machine has a history of malfunctioning.

A lawyer should always check out the certificates of the alcotest machine. If the DWI case has a marginal BAC reading, and if the alcotest machine has a history of being unreliable, then this fact can assist the defendant to win the case.

8. The police fail to read DMV Standard Statement 36 to the DWI driver.

The DMV Standard Statement 36 is an eleven-paragraph page that must be read to all DWI drivers. The police will then ask the DWI driver to sign at the bottom of the statement. If the police do not read the entire DMV Standard Statement 36 to the DWI driver, then in many municipal courts they will dismiss the case. This is a great defense, and it should not be overlooked.

9. Proper Operation of the Alcotest machine.

The Alcotest 7110 is alleged to be foolproof. Nonetheless, currently there are still many requirements that the police officer must comply with to properly operate the alcotest machine. In a DWI case the prosecutor must demonstrate that the alcotest machine was used in accordance with these accepted procedures. The prosecutor must demonstrate that the alcotest machine was properly operated by the police officer who conducted the breath test.

10. The police fail to wait twenty minutes after the arrest to conduct the breath tests.

The police must wait at least twenty minutes after the arrest to conduct the breath tests. The reason for this waiting period is to permit the DWI driver’s alcohol residue to dissipate. Many courts will recognize this defense and dismiss the case if there is a violation.

11. The police fail to wait ten minutes between the breath tests.

The police must wait at least ten minutes between the breath tests. Sometimes, the police become careless and they overlook this requirement. This is a great defense, and it does occur in some cases.

12. Attack the credibility of the police.

13. The State failed to provide an after-certificate.

The prosecutor must provide an after-certificate that proves that the alcotest is in proper working condition after the time of the DWI driver’s arrest.

14. The paperwork is all messed up.

The police must prepare “books of paperwork” in order to document their DWI case. In many cases, the police do a terrible job in documenting their DWI case. Remember, most police hate paperwork, and in many instances the police officer won’t arrest a drunk driver so that they can avoid preparing all of the paperwork. If the paperwork is sloppy, then this can be used to impeach the police officer(s), and to create holes in the State’s case. Always be aware for errors in the labeling of the breath samples, and of the alcotest machines. Also be aware for discrepancies of the times marked in the police reports. These minor points can be used to try to develop weak links in the State’s case.

15. The police fail to conduct the field sobriety tests correctly.

The police must be trained to correctly conduct field sobriety tests. In one of my cases, the police did not even have the proper training and education to conduct field sobriety tests. My client beat the DWI case on this defense.