The Fifth Amendment Privilege Against Self-Incrimination in New Jersey DWI Cases

By Noclip at en.wikipedia (Transferred from en.wikipedia) [Public domain], via Wikimedia CommonsThe Bill of Rights contains numerous important protections for people against possible overreach by the government, especially in prosecutions for alleged offenses. The Fifth Amendment protects a very important right:  the privilege against self-incrimination. This means that a court cannot compel a person to testify against themselves in a criminal trial. A person invoking this privilege is often said to be “taking the Fifth.” The laws that deal with driving while intoxicated (DWI) in New Jersey and many other states, however, seem to conflict with this privilege in some ways, such as by requiring drivers to submit to breath testing. It is worth looking more closely at these laws, and how the U.S. Supreme Court and New Jersey courts have interpreted them in light of the Bill of Rights.

The state can present statements made by a defendant as evidence of guilt at trial, with some important restrictions. One of the most famous decisions by the U.S. Supreme Court, Miranda v. Arizona in 1966, established that law enforcement officers must advise a suspect of certain constitutional rights before conducting a “custodial interrogation.” The warning that has resulted from this ruling, known as the “Miranda warning,” includes the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to an attorney.

Officers must read the Miranda warning to a suspect at about the same time they place the suspect under formal arrest, and before they begin asking direct questions about the alleged offense. These are the two elements of a “custodial interrogation,” and they must be present for Miranda to apply. Statements made by a suspect during a custodial interrogation are inadmissible in court if the suspect has not been “Mirandized.”

In New Jersey, DWI is a traffic offense, not a criminal offense, although the difference may seem unimportant to someone sentenced to a jail term. The question arose after Miranda as to whether the Miranda warning was required in non-criminal cases like DWI. The U.S. Supreme Court addressed this in 1984 in Berkemer v. McCarty. The court held that people suspected of traffic offenses are subject to the same Miranda protections, but only once they are in custody. Questioning that takes place during a traffic stop, but before an arrest, does not violate the Fifth Amendment.

Multiple defendants have claimed that New Jersey’s implied consent statute, which requires people suspected of DWI to submit a breath sample to police on penalty of license suspension, and the use of field sobriety tests (FSTs) during traffic stops violate the Fifth Amendment privilege against self-incrimination. In 1984, the New Jersey Appellate Division’s ruling in State v. Green rejected this argument. It held that the privilege “is not necessarily implicated just because a suspect is compelled in some way to cooperate in developing evidence which may be used against him,” and it cited prior decisions that affirmed other practices requiring cooperation from suspects. This included the 1966 U.S. Supreme Court decision in Schmerber v. California, which involved drawing blood from a DWI suspect without a warrant.

If you are facing a charge of alleged DWI, a knowledgeable and experienced DWI attorney can help you understand your rights and protect your interests in court. We have dedicated our entire practice at Levow DWI Law to defending the rights of people charged with DWI in New Jersey. Contact us online or at (877) 975-3399 today to schedule a free and confidential consultation with a member of our team.

More Blog Posts:

Court Rules on Right Against Self-Incrimination, Right to Jury Trial in New Jersey DWI Case, New Jersey DWI Attorney Blog, April 27, 2015

Motorist Settles Lawsuit Against City Involving Arrest for Alleged DWI, New Jersey DWI Attorney Blog, March 6, 2015

Is There a Right to Trial by Jury in New Jersey DWI Cases? New Jersey DWI Attorney Blog, December 22, 2014

Photo credit: By Noclip at en.wikipedia (Transferred from en.wikipedia) [Public domain], via Wikimedia Commons.