Police officers in New Jersey use a device known as the Alcotest to determine a person’s blood alcohol content (BAC) in cases of suspected driving while intoxicated (DWI). The model currently in use throughout the state, the Alcotest 7110 MKIII-C, is subject to numerous restrictions established by the New Jersey Supreme Court in 2008. The New Jersey Attorney General recently announced plans to test a newer model, the Alcotest 9510, in some areas of the state. While the Alcotest 9510 has features that appear more “high-tech” than the 7110, its scientific reliability is far from established. The 7110’s reliability is still questionable in many cases, so switching to a new device is sure to be contentious.

What Is the Alcotest?

“Alcotest” is a brand name that belongs to Dräger, a company that manufactures a variety of devices used in healthcare, law enforcement, and other areas. Alcotest products include handheld devices, similar to a Breathalyzer, that provide fast BAC readings from breath samples, and larger breath-testing devices like the Alcotest 7110 that are not portable.

Police bring DWI suspects to the police station for testing by an officer who is certified to operate the Alcotest 7110. The 2008 New Jersey Supreme Court decision, State v. Chun, established procedures that police must follow in order to ensure the best chance for accurate results. For example, police must observe the suspect for twenty minutes before collecting a breath sample. During that time, the suspect must not place anything in their mouth that might interfere with the test. If anything enters the person’s mouth, even by burping, the twenty-minute clock must restart.
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In New Jersey, driving while intoxicated (DWI) is a serious offense that can result in significant penalties. A conviction for DWI results in a suspension of your driver’s license, as well as a fine and the possibility of jail time. The state has to follow a lengthy process before the case gets to the point at which you could face a conviction. This process can seem overwhelming to many people. An experienced DWI attorney can help you understand how the process works and what you may do to assert your rights. The following is an overview of what happens during a typical New Jersey DWI arrest.

Investigation at the Scene

A traffic stop is one of the most common ways in which a DWI case begins. A police officer might see a car driving erratically and suspect DWI. They might pull someone over for another traffic violation, such as running a red light, and suspect DWI based on factors like the driver’s behavior or the smell of alcohol.

The officer must have probable cause to suspect a driver of DWI before they may proceed further with an investigation. They may ask a driver questions about whether they have had anything to drink. They may also ask the driver to perform certain field sobriety tests (FSTs). A driver can refuse to perform the FSTs, but that most likely will not stop the officer from placing them under arrest.

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The Bill of Rights and New Jersey law protect various rights of drivers suspected of driving while intoxicated (DWI). Knowing your rights may help you make informed decisions about what to do — and what not to do — if the police pull you over. Violations of your legal or constitutional rights by police could give you defenses that you can raise in court. The following is an overview of your rights during a New Jersey DWI investigation.

The Right to Freedom from “Unreasonable Searches and Seizures”

The Fourth Amendment prohibits police from searching a person or their property, seizing property, or detaining a person without a warrant issued by a court. Many exceptions to this rule exist, but police must demonstrate that an exception applies.

Police Must Have Reasonable Suspicion to Stop Your Vehicle

When a police officer pulls your car over on the road, they must be able to show that they had a reasonable basis for suspecting a traffic violation or other offense, such as if they witnessed you running a stop sign or driving erratically.
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A case involving alleged driving while intoxicated (DWI) can have many possible outcomes, ranging from the dismissal of all charges to a conviction after a trial before a municipal court judge. Even then, a defendant might still have the right to appeal or to seek post-conviction relief. Like any kind of court proceeding, few DWI cases ever go to trial. Many DWI cases, perhaps most, result in pleas or plea agreements of some kind. New Jersey law limits the use of plea agreements in DWI cases, but a knowledgeable DWI attorney can advise their clients about whether a plea would be a good idea. One type of plea that is available in New Jersey DWI cases, the conditional guilty plea, enables a defendant to appeal certain decisions made by a municipal court before trial.

Prosecutors have the burden of proving that a defendant is guilty of each element of the offense of DWI. State law defines DWI as operating a motor vehicle either (1) while under the influence of alcohol or drugs or (2) with blood alcohol content (BAC) of at least 0.08 percent. Chemical testing of a DWI suspect’s breath, blood, or urine can determine their BAC. Even without chemical test results, a prosecutor can establish that a defendant was impaired with eyewitness testimony from police officers and expert testimony from drug recognition experts.

Defending against a DWI charge could involve challenging any part of the state’s case. A DWI lawyer might, for example, challenge the validity of the initial traffic stop. If the police officer did not have reasonable suspicion of any sort of traffic violation, then the stop violated the defendant’s Fourth Amendment rights. The court should suppress any evidence obtained as a result of the unlawful traffic stop. A successful motion to suppress based on an unlawful traffic stop often results in dismissal of the case, since it would leave the state with very little evidence. A defendant and their attorney could also move to suppress evidence based on other violations of their rights, such as breath test results from an Alcotest device that was not in compliance with state law.
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Attorneys representing people charged with driving while intoxicated (DWI) in New Jersey municipal courts can use pretrial motions to give their clients a better chance of achieving a positive outcome. A motion to suppress evidence is one of the most powerful pretrial motions a lawyer can use. It seeks to prevent the state from using evidence obtained in violation of a defendant’s constitutional rights. If successful, a motion to suppress limits the amount of evidence that prosecutors may introduce in court. It may even result in the dismissal of the DWI charge.

What Is a Motion to Suppress?

A motion to suppress is based on the “exclusionary rule.” The Fourth Amendment to the U.S. Constitution requires police to obtain a warrant before searching a person or their property, with some exceptions. If police conduct a search that violates a defendant’s Fourth Amendment rights, the exclusionary rule blocks prosecutors from using that evidence at trial.

The exclusionary rule applies to any evidence that police could only obtain through an unlawful search. This evidence is known as the “fruit of the poisonous tree.”
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The U.S. Constitution protects people’s rights in court proceedings, particularly cases that can result in jail time and other punishments. This includes driving while intoxicated (DWI) cases in New Jersey and around the country. The Due Process Clauses of the Fourth and Fourteenth Amendments, as interpreted by the courts, require prosecutors to prove a defendant’s guilt “beyond a reasonable doubt.” This is the toughest burden of proof in our legal system. While DWI is a motor vehicle offense in New Jersey, not a criminal offense, a conviction can lead to significant penalties. The same due process protections apply to DWIs and other motor vehicle cases. “Beyond a reasonable doubt” is a highly subjective standard, but it can be the key to defending against a DWI charge.

What Is a Burden of Proof?

In any court proceeding, someone is responsible for establishing a legal claim and providing supporting evidence. This responsibility is known as the burden of proof. Plaintiffs generally have the burden of proof in a civil lawsuit, and prosecutors have it in criminal and motor vehicle cases.

The person with the burden of proof must convince the judge about their legal claims. Since DWI cases in New Jersey do not have jury trials, the judge also decides whether the state has met its burden of proving the facts.
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When police are investigating a person suspected of driving while intoxicated (DWI), they must follow procedures designed to safeguard people’s constitutional rights. The Fourth Amendment to the U.S. Constitution requires police, with some exceptions, to get a search warrant before conducting a search of a person or their property. Evidence that police obtain in violation of the Fourth Amendment is inadmissible in court. A DWI defendant and their attorney can establish that a constitutional violation occurred by filing a motion to suppress. If the court grants the motion, the state cannot use any evidence obtained through the unlawful search. Sometimes, this means prosecutors cannot move forward with the case and must dismiss that charges.

Motions to Suppress in DWI Cases in New Jersey

Municipal courts in New Jersey have jurisdiction over DWI cases. Rule 7 of the New Jersey Rules of Court governs municipal court proceedings.

A DWI defendant can file a motion to suppress evidence obtained in any unlawful search, whether the police had a warrant or not. If the police had a warrant for the search, the defendant must show that it was improper. For example, a warrant could be found to be invalid if the officer withheld important information from the judge who issued the warrant.
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Police and prosecutors have several ways to prove that a person was impaired by alcohol in driving while intoxicated (DWI) cases. New Jersey law requires any driver to cooperate with some of these methods, such as breath testing. Other methods are not mandatory, but refusal to cooperate could work for you or against you if your case goes to court. Field sobriety tests (FSTs) provide police with circumstantial evidence that you were under the influence of alcohol or another substance at the time they pulled you over. Nothing in state law requires you to perform FSTs when asked by a police officer. The reliability of FSTs is questionable at best, so if you agree to perform them, an experienced DWI defense attorney can help defend you against whatever prosecutors claim the tests established.

What Are Field Sobriety Tests?

FSTs are a series of physical tests administered by police officers when they suspect that a person is under the influence of alcohol or drugs. Police will often ask a person to perform FSTs when they suspect DWI but are not certain that they have enough probable cause for an arrest. Flawless performance on FSTs is unlikely to result in police deciding not to arrest you, because a police officer has usually already made up their mind about an arrest when they ask you to perform FSTs.

The National Highway Transportation Safety Administration (NHTSA) has approved three standardized FSTs, which are commonly accepted by New Jersey courts:
1. Horizontal gaze nystagmus (HGN): An officer asks the person to look at a stimulus, which could be their finger, a pen, or another object, and to follow it with their eyes without moving their head. The officer is looking for involuntary eye movements, known as nystagmus, which are supposedly a sign of intoxication.
2. Walk-and-turn: The officer instructs the person to walk a straight line, heel-to-toe, for nine steps, and then to turn around and take nine more heel-to-toe steps back to where they started.
3. One-leg stand: The person must stand with one foot raised about six inches off the ground, counting out loud, until the officer tells them to stop.
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The Sixth Amendment to the U.S. Constitution guarantees the right to a “speedy trial” in criminal prosecutions. The state cannot make you wait an unreasonably long time, possibly while you remain in custody, to have your day in court. Although driving while intoxicated (DWI) is not considered a criminal offense under New Jersey law, the municipal courts that hear DWI cases use many of the same procedures. Most of the rights guaranteed by the Sixth Amendment apply to motor vehicle offenses like DWI, including the right to a speedy trial. The New Jersey Supreme Court recently issued a ruling in a case in which a defendant alleged violation of this right, in part because of the COVID-19 pandemic. The court’s decision offers a useful reminder for New Jersey DWI defendants about their rights.

Violations of a defendant’s constitutional rights can sometimes result in the dismissal of the charges against them. If a DWI defendant can establish, for example, that the police officer who pulled them over had no reasonable suspicion of illegal activity, the court can suppress all evidence obtained from the traffic stop because of the violation of the defendant’s Fourth Amendment rights. If this leaves prosecutors with no evidence, the court could dismiss the case. A violation of the right to a speedy trial can also lead to the dismissal of the charges if a trial has not taken place yet, or the reversal of a conviction and sentence on appeal.

The U.S. Supreme Court established a four-part test for evaluating speedy trial claims in 1972’s Barker v. Wingo:
1. The length of the delay before trial;
2. The reason(s) for the delay;
3. The circumstances in which the defendant is claiming a violation of the right to a speedy trial; and
4. The extent to which the delay has prejudiced the defendant’s rights.
The court left it to individual courts to determine how much time is too much for the first part of the Barker test. Prosecutors could claim a valid reason for what appears to be an unreasonable delay. A court must balance this with issues like the availability of defense witnesses and other evidence after a significant amount of time has passed.
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Prosecutors who handle New Jersey driving while intoxicated (DWI) cases must prove that a defendant is guilty beyond a reasonable doubt. They present evidence in order to establish that a defendant was under the influence of alcohol or drugs. In order to counter this evidence, a defendant may need to produce an expert witness. A compelling report from an expert could even convince a prosecutor to drop a DWI charge. If not, the expert can testify at trial about their findings. An experienced DWI defense lawyer can identify where expert testimony would be most helpful and can find qualified experts for your case.

What Is an Expert Witness?

Rule 702 of the New Jersey Rules of Evidence (NJRE) defines an expert witness as someone who has particular “scientific, technical, or other specialized knowledge,” which they have attained through “knowledge, skill, experience, training, or education.” This definition has three important components:
1. The subject must be beyond many or most people’s understanding.
2. The witness’ field of expertise must be established enough to provide reliability.
3. The witness must demonstrate that they have achieved expertise in the field.
Unlike other witnesses, expert witnesses may testify about their opinions, as long as those opinions are based on their expert knowledge and can help a judge understand a DWI case.

A police officer with training in the use of Alcotest devices, for example, may testify about the condition and reliability of the machine used to test samples of a defendant’s breath. A drug recognition expert (DRE) could testify about their conclusion, based on training and experience, that a defendant was under the influence of a particular drug or type of drug.
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