Refusal, Breath Sample Size, and Women Over Sixty

Breathalyzer test being given by a policeman

If you are pulled over in the state of New Jersey, and a police officer has reasonable suspicion to believe that you have been driving while intoxicated, there is a good chance that you will eventually be asked to provide a breath sample so the police officer can determine your blood alcohol content (BAC). There are actually two breath tests that the police officer may use on you. The first is the roadside breath test, which is actually an unofficial test, also known as a portable breath test (PBT). The second, official test, and the only one admissible in court, is much more accurate, but there are also many more rules that come with how the test is conducted.

The law actually requires that you provide an official sample if a police officer requests that you provide the sample based on probable cause. You do not have the right to refuse to comply with the test, known as the Implied Consent statute – although you are not required to comply with a PBT. If you do not provide a breath sample, you might be charged with drunk driving, as well as charged and possibly convicted of N.J.S.A. 39:4-50.2, Refusal to Take a Breath Test, which could carry equally heavy penalties. What most people do not know is that you can be charged under the Refusal law even if you do provide a breath sample, but you do not follow directions and give breath samples that are large enough.

Sufficient Breath Sample Size

In New Jersey, official breathalyzer tests must be conducted on a Draeger Alcotest 7110. Since the case of State v. Chun in 2008, the state has ruled that drivers are required to provide a breath sample that is sufficiently large. The minimum volume for a breath sample is at least 1.5 liters of air. If a driver does not provide a sample that is large enough, he or she can be convicted of Refusal to Take a Breath Test, as if he or she did not attempt to provide a sample at all. It is not a defense to the law if a driver is too drunk to provide a complete breath sample, but there may be other defenses if a driver has a health condition or some other legitimate reason why he or she cannot provide a sample.

Number of Breath Samples

Moreover, the Implied Consent law not only requires that you submit to a sufficiently large breathalyzer sample if you are asked by a police officer with probable cause. The law also requires that you provide breath samples – meaning the police usually require a minimum of two complete samples for you to be in compliance with the law. This is also to ensure accuracy in BAC test results. If one test result is over the legal limit of .08% BAC, and one is under the legal limit of .08% BAC, the discrepancy can be used in favor of the driver, since the police will use the lower result. In the case of State v. White, the Court ruled that the failure to provide at least two breath samples could constitute Refusal to Take a Breath Test.

What if You’re a Woman Over 60 Years Old?

If you are a woman over 60 years old, there are actually different rules that apply to you when it comes to breath sample size. After studying the scientific reliability of Alcotest breath results, the New Jersey Supreme Court actually decided to adopt separate rules on breath volume size, because women over the age of 60 may have difficulty in providing a sample consisting of 1.5 liters of air within the required time period. Specifically, the study found that women from age sixty to sixty-nine have an average breath volume of 1.4 liters, women seventy and over have an average of 1.3 liters, and women eighty and over have an average volume of 1.2 liters.   At the same time, the Court found that men, regardless of age, were capable of producing a sample of 1.5 liters.

Accordingly, the Supreme Court directed that Alcotest 7110 machines be reprogrammed so that smaller breath sample sizes could be taken and used to get BAC results for those individuals. The Supreme Court also decided in Chun that it would be unfair to prosecute women over the age of sixty under the Refusal to Take a Breath Test law if they could not provide an adequate sample of 1.5 liters of air. At the same time, if a woman over the age of 60 does provide at least one sample of 1.5 liters of air, but failed to do so on subsequent attempts, that fact could be used by the prosecutor as evidence to support a charge of refusing to submit to a breath test.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Knows How To Help if You are Charged with Drunk Driving

A conviction on DWI/DUI and refusal charges can mean serious penalties – jail time, heavy fines, and loss of license. Defending against these charges can also involve extremely complicated evidentiary issues. If you or someone you know is arrested for driving under the influence of alcohol or drugs, it is important to have a lawyer who knows how to help. An experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Aaron Carter’s Arrest and Driving Under the Influence of THC and Other Forms of Marijuana

On July 17, singer Aaron Carter, 29, was arrested in Habersham County, Georgia on suspicion of driving under the influence of drugs and possession of marijuana. He was arrested at approximately 9pm in the rural county north of Atlanta. According to Habersham County Captain Floyd Canup, Carter is currently facing several charges including DUI, possession of less than 1 ounce of marijuana and possession of drug related objects. Carter was in a vehicle with his photographer girlfriend, Madison Parker. She was also arrested and charged with obstruction and two drug-related charges.

Interestingly, authorities did not find Carter with green or leafy marijuana. Carter has tweeted that he holds a medical license for medical marijuana. Georgia’s medical marijuana program only provides for low-concentration THC oil and official statements have responded that Georgia law does not allow for the type of marijuana found during the arrest. It is unclear from reports what other form of marijuana Carter had – whether it was marijuana edibles, high concentration THC oil, a THC inhaler, or some other product.

New Jersey and Medical Marijuana

If Carter had been found driving while intoxicated due to marijuana in New Jersey, he still could have been charged under New Jersey’s laws. New Jersey, like Georgia, has a medical marijuana program. Earlier this year, the number of enrollees in the program surpassed 10,000 active members for the first time.

Importantly, New Jersey law does not allow any driver to drive while intoxicated, regardless of whether or not he or she is intoxicated due to a legally prescribed or obtained medication. This means that it may not be a defense that a driver is part of the medical marijuana program if it can be shown that the driver was intoxicated and the driver’s impairment was such that he or she posed a danger to him or herself or others on the road.

Furthermore, unlike some other states, New Jersey’s medical marijuana law does not allow persons with an out-of-state medical marijuana license to possess marijuana in the state without also having a New Jersey medical marijuana license.

DUI/DWI and Marijuana or THC in Other Forms

Similarly, New Jersey does not allow a driver to drive while high due to marijuana regardless of the form the marijuana takes – including “pot brownies” or vapor pens or any other form of THC that can be ingested or absorbed by. Indeed, THC (tetrahydrocannabinol), the chemical compound in marijuana, comes in many forms now than it ever has before. Gummy bears, soda, flowers (buds), dabs, concentrates, vapor pens, salves, just to name a few.

Although driving under the influence of marijuana was traditionally due to driver’s smoking marijuana before or while getting behind the wheel, Aaron Carter’s arrest mirrors a common arrest scenario that is happening across the United States every day. More and more commonly, the basis for the intoxication is use of marijuana in non-smoked form. An officer will not be able to provide grounds for the arrest based on smelling burnt or raw marijuana inside of a vehicle. Instead, the officer will need to determine whether or not a driver is intoxicated based on other observable reasons, and will require a legal reason to pull the driver over in the first place that does not include smelling marijuana.

Because the field of driving under the influence of marijuana is constantly changing, it is more important than ever to contact an experienced DUI/DWI lawyer if you or anyone you know is ever arrested or charged with driving while high. A good attorney will be able to take the time to sit down with you and review your case, explain what consequences you are facing, and determine any possible defenses you may have, particular in light of laws that can change at any time.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Can Help Those Charged with Driving While High

A charge for operating a motor vehicle while under the influence of drugs or alcohol can result in serious and complicated penalties that affect you and your loved ones. If you or someone you know is charged for any crime relating to driving under the influence of alcohol or drugs, including marijuana, it is extremely important to contact an experienced DUI/DWI attorney who can explain what rights you have. A good lawyer can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the State of New Jersey.

New Jersey DUI/DWI Discusses the Unreliability of Urine Test Results to Prove Blood Alcohol Content

blood-testWhen somebody is charged with driving under the influence of alcohol, the government is responsible for proving all elements of the offense based on clear and convincing evidence. In New Jersey, this can be proved in various ways, but the most common is through the use of blood alcohol evidence to show that the driver was operating a vehicle with a blood alcohol content (BAC) of .08% or higher.

Most people are familiar with the common breathalyzer test, which is used to measure BAC based on a driver’s breath sample. In most cases, the breathalyzer results will make up the only evidence of BAC in a prosecutor’s case. Other times, however, the state may also be able to rely on blood or urine samples to satisfy the government’s burden of proving that a driver had a BAC of .08% or higher when he or she was operating the vehicle.

While the Edward M. Janzekovich law blog has previously discussed the unreliability of urine testing to determine marijuana use, many experts now also believe that urine testing is the least reliable way to determine a driver’s BAC when it comes to proving charges for driving while intoxicated with alcohol.

When Is Urine Testing Used?

Due to the fact that many substances other than alcohol will not be detected by a breathalyzer, police officers may sometimes ask for or get a warrant for a driver’s urine sample if the officer suspects the driver is under the influence of drugs. For example, the presence of marijuana may be in someone’s urine, but there is no currently reliable breath test for marijuana.

Other times, a driver suspected for DUI/DWI may be involved in a motor vehicle accident. If certain injuries occur, such as an injury to the face or nose, or if the driver is hospitalized, a breathalyzer test may not be possible. At those times, a blood or urine test may be requested.

Regardless of why a urine test is obtained, once the state has legal access to a urine sample, the prosecution may seek to use the urine sample as evidence of the driver’s BAC.

The Unreliability of Urine Tests

Importantly, urine tests are considered the least reliable form of chemical test, and can often be effectively challenged in court. In fact, the National Institute of Drug Abuse has found that more than 20 percent of the labs that process urine tests for the presence of drugs and alcohol have reported “false positives.” This means that about 20 percent of the labs reported the presence of drugs or alcohol in drug-free or alcohol-free urine samples.

Furthermore, errors are quite common in urine testing because the technicians analyze water and not blood. BAC results in urine tests are usually inflated because the concentration of alcohol in urine is approximately 1.33 times the concentration of alcohol in blood. Drug screens of urine also tend to confuse similar chemical compounds and can lead to inaccurate results. Urine tests show only the presence of metabolites – inactive traces of previously ingested substances – not the actual drug or alcohol consumed.

Unsurprisingly, New Jersey courts consider urine testing the least scientifically reliable form of chemical test.

Challenging Urine Test Results

Just because you have incriminating urine results does not automatically mean that the state can use this evidence to convict you of a DUI/DWI. Certain protocols must be observed during the administration of a legal urine test in the state. The driver must be given a certain amount of privacy while still ensuring the accuracy of the sample. Drivers should also be instructed to empty their bladders, wait 20 minutes, and then urinate again. There is also strict storage protocol.

Because urine tests are considered to be extremely unreliable in both drunk driving and driving under the influence of drugs cases, it is possible to successfully challenge the results of such tests. If you or someone you know is charged with driving under the influence of alcohol or drugs, you should contact an experienced DWI attorney immediately. An experienced lawyer will know how to identify the potential flaws in a case based on urine test evidence and can incorporate those methods into a solid defense strategy on your behalf.

New Jersey DUI Attorney Edward M. Janzekovich Can Help Even When There Is Evidence of Drunk Driving

DWI/DUI cases can often involve complicated issues of scientific evidence, and successfully challenging that evidence requires knowledge and experience. If you or someone you know is facing a DWI charge, a knowledgeable drunk driving attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

New Jersey Drunk Driving Attorney Examines Proposed Law Making Ignition Interlock Devices Mandatory for All DWI Convictions

DWI Convictions

A new bill introduced before the state legislature last year by State Senator Nicholas Scutari may drastically change the way drivers convicted of DUI in the state are convicted.  The proposed changes to the State’s Driving While Intoxicated law, N.J.S.A. 39:4-50, seek to lessen some penalties for first time drunk drivers while making others more universal –  such as making Ignition Interlock Devices mandatory for all drivers convicted of DUI/DWI, even first time offenders.

Similar to the other proposed Senate Bill 404, discussed here earlier this year, it is important to recognize that there is no guarantee that this proposed bill will ever pass.  Also like that bill, the goal of Senator Scutari’s introduced legislation is to provide an alternative to drivers convicted of driving under the influence of alcohol, showing some added leniency to such drivers while simultaneously making the roads safer.

Which Parts of N.J.S.A. 39:4-50 Might Be Affected?

In New Jersey, the legal Blood Alcohol Content (BAC) limit for drunk driving in the state is .08%.  Under current law, someone convicted of DWI for the first time can have their license suspended for either 3 months (if his or her blood alcohol content is between .08% and .099%) or 7 to 12 months (if his or her blood alcohol content is .10% or greater). A judge has a lot of flexibility in deciding how long to suspend a driver’s license in those circumstances.

At the same time, a first time offender who is convicted with a blood alcohol content of .15% or greater must have an ignition interlock device installed on his or her vehicle during the period of license suspension until between 6 months to 1 year following license restoration.  An ignition interlock device is a device put on a car that requires a driver to provide a clean, alcohol breath sample before he or she can start the car.

How Will These Parts of the Law Change If the Proposed Bill is Passed?

Under Senator Scutari’s introduced legislation, a first time drunk driver who is convicted of driving with a BAC of between .08% and .099% will only have his or her license suspended for 30 days – a significant reduction from 3 months.  Similarly, a driver who is convicted of driving with a BAC of between .10% up to just less than .15% will have his or her license suspended for 45 days, while a driver who is convicted of driving with a BAC of .15% or higher will have his or her license suspended for 90 days.

At the same time, the proposed legislation hopes to make installation of an ignition interlock device mandatory for ALL drivers convicted under the DWI law.  The device must remain on the driver’s vehicle for the period of license suspension as well as an additional period of time between 3 months and 18 months after the driver gets his or her driving privileges reinstated.

What These Changes Would Mean if You Are Convicted

Losing one’s driving privileges is often the most severe penalty that first time drunk drivers face, because the penalty often means that a driver also loses his or her ability to go to work or otherwise provide for his or her family.  Reducing the period of license suspension for first time offenders recognizes this reality and tries to address the way the law punishes more than just the drunk driver.

At the same time, recent reports have estimated that ignition interlock devices have prevented more than 39,000 instances of drunk driving in New Jersey since 2010.  Therefore, requiring drivers to install an ignition interlock device attempts to make the roads safer for everyone.  The proposed law would not prevent a driver from being able to use his or her vehicle – for instance, to drive to work or buy groceries if necessary – but it would guarantee that the car could only be operated after a clean, alcohol-free breath sample is provided. 

The largest downside to the proposed law is that New Jersey requires the driver to pay for his or her own ignition interlock device, including the installation.  In addition to the nearly $1000 in fines that first time drunk drivers must already pay, an ignition interlock device could cost $70-150 to install and about $60-80 per month for additional monitoring and calibration.

Regardless of whether or not this bill becomes law, a person charged with driving under the influence of alcohol or drugs should always contact an experienced drunk driving attorney, who will be able to provide the best advice or possibly defend the case and get the charges dismissed completely.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Is Looking Out for You

A charge for driving under the influence of alcohol can carry extremely serious penalties that affect you as well as your family and loved ones.  At the same time, new laws, rules, and regulations take effect all the time. For that reason, it is important to consult a drunk driving lawyer knows what to look for in your specific situation.  If you or someone you know is charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI/DUI attorney will know the best way to help and can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

NJ Woman Arrested For DUI and Forcibly Catheterized Settles Lawsuit for $140,000 After Contracting MRSA

Tumbler glass with whiskey and a car key

Earlier this month, a New Jersey woman settled a lawsuit against Ocean City, individual Ocean City police officers, and other defendants after claiming that she contracted a disease because police officers conducted a forced urine sampling procedure to see if she had been driving drunk. Law enforcement must first obtain a driver’s consent before taking a blood or urine sample. If consent is not given, officials can legally obtain a warrant from a judge to get a driver’s urine sample if they have probable cause to believe he or she has been driving drunk, but, in this case, the lawsuit alleged that the procedures used by the officers were unauthorized and improper.

Events Leading Up to the Arrest

Norma Powell’s original arrest dates back to July 11, 2012, when Ocean City police believed that she was intoxicated after driving her Nissan Sentra the wrong way through a toll lane and crashing into a concrete barrier wall on the Ocean City-Longport Bridge. A witness following the vehicle told police Powell had been driving erratically across the bridge and nearly hit a pedestrian.

Police subsequently pulled over Ms. Powell and conducted field sobriety tests to see if she was intoxicated. In New Jersey, these tests include walking on a line and turning, standing on one leg, and something called a horizontal gaze nystagmus test which measures your eyes for involuntary movements. Based on these tests, the police officers believed they had probable cause to administer a breathalyzer, but Ms. Powell could not complete the Breathalyzer test because she suffered from chronic obstructive pulmonary disease (COPD). Police then took her to a hospital.

The Allegedly Improper Urine and Blood Testing in this Case

At this point, Ms. Powell alleges that the officers’ actions were unauthorized, improper, and/or illegal, because they asked hospital staff to draw her blood and obtain a urine sample without her consent and without a warrant. If a driver does not agree to provide a urine or blood sample, government officials are legally required to obtain a warrant before getting such a sample.

The process used to obtain Ms. Powell’s urine sample is called catheterization. The lawsuit claims that the improper catheterization caused Ms. Powell to contract MRSA, a serious bacterial infection. This prompted her to file a federal lawsuit with the U.S. District Court against Ocean City, Sgt. Daniel Dubbs, Shore Medical Center, and two hospital employees: Kathryn Page, a registered nurse, and Jessica Ruiz, an advanced practice nurse in July of 2014. Earlier this month, it was reported that Ms. Powell dropped the case against all of the defendants in exchange for a settlement of $140,000. A city representative has declined to comment on the settlement.

When the Police Can Test You in New Jersey, and When They Cannot

In New Jersey, as a condition of receiving your driver’s license, you are required to provide a breath sample to a police officer if the officer has probable cause to believe you have been driving while intoxicated. This is known as “implied consent.” If you refuse to take the test, you are subject to punishment including a loss of driving privileges, fines, and jail time based on a charge for Refusal to Provide a Breath Sample, N.J.S.A. 39:4-50.2.

However, New Jersey law does not require that a driver provide blood or urine samples. Police officers may request blood and urine testing when a breathalyze test cannot be used – for instance, due to the driver’s health condition, an injury, or the unavailability of a breathalyzer machine. Breathalyzer machines also can only test for blood alcohol content, and cannot measure intoxication due to drugs or other substances. A driver has the right to refuse to participate in testing.

If you are not comfortable with providing a urine or blood sample, you should refuse to give consent to such testing. If a driver refuses, the police must obtain a search warrant from a Judge, based upon probable cause that the driving is driving while intoxicated and if granted, the police can then force a driver to give blood or urine for testing. If a warrant is issued, then you have to comply.

If you or someone you know has been arrested on any charges related to driving under the influence of alcohol or drugs, you should consult an experienced attorney immediately. A knowledgeable DUI/DWI lawyer will be able to review you case, see if the actions taken by the government were authorized or proper, and explain what consequences you are facing in your specific situation.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Help Drivers Facing DUI / DWI Charges

A charge for operating a motor vehicle while under the influence of drugs or alcohol can result in serious and complicated penalties that affect you and your loved ones. Defending drivers charged with DWI / DUI can also involve complicated evidentiary issues. A knowledgeable attorney will know how to review the case. An experienced DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

New Study Ranks New Jersey Fourth for Lowest Drunk Driving Incidents in the US

empty beer bottle and car key behind bars

A recently published report ranking all 50 US states with regard to the number and severity of drunk driving incidents per capita just listed New Jersey fourth lowest overall for the year the data was collected. Although New Jersey is one of the most densely populated states, and has the 11th largest population in the country, the data is based on the average number of incidents per person. The only states with a better ranking are New York (#1), Massachusetts (#2), and Illinois (#3).

According to the same report released by BackgroundChecks.org, New Jersey also experienced a 31.1% decrease in DUI incidents since the previous year. Although it is not clear what the cause is for the drastic reduction in DWI numbers, one of the likely contributing factors is the increased attention to drunk driving prevention and DUI enforcement by police departments across the state. This means that, if you are driving under the influence of alcohol or drugs in New Jersey, you are more likely than ever to be caught and/or convicted of drunk driving.

How the Rankings Were Decided

The DUI report used multiple sources of data in its rankings including statistics from the Department of Transportation (DOT), the Centers for Disease Control and Prevention (CDC), and Mothers Against Drunk Driving (MADD), organizations that collect and aggregate state data. Researchers then created a formula that accounted for the number of DUI incidents including:

  • The number of deaths directly attributable to DUIs,
  • DUI arrests per 100,000 people, and
  • Self-reported drunk driving

A weighted formula was then applied to the data that considered the number of drunk driving incidents and the severity of each incident in order to give a final ranking to each state.

Other Rankings and Data

According to the report, the findings for New Jersey included:

    111 deaths directly attributable to DUIs in New Jersey for 2015

    .20% of all traffic deaths in 2015

    31.1% decrease in incidents from the previous year

    1.24 DUI deaths per 100,000 people

    22,201 total DUI arrests

    248 DUI arrests per 100,000 people

    1.4% of adults who reported drinking too much before driving for 2014

While any number of DUI-related deaths is too many, New Jersey’s rate of 1.24 DUI-related deaths per 100,000 people was the lowest rate of any state in the nation. Between 2003-2012 alone, the CDC reported that 1,816 people were killed in crashes involving a drunk driver in New Jersey. Of those deaths, most were between the ages of 21 and 34.

New York ranked #1 overall with 1.58 DUI-related deaths per 100,000 people, but only 147 DUI arrests per 100,000 people.

The States with the Worst DUI-related Problems are Wyoming (#1), North Dakota (#2), and South Dakota (#3). South Dakota reported 844 DUI arrests per 100,000 people, compared to 838 for North Dakota, and 539 for Wyoming. However, Wyoming also reported the highest number of DUI deaths per capita at 9.56 deaths caused by drunk driving per 100,000 people.

What the Data Means if You Drink and Drive

Make no mistake about it- although the report ranks New Jersey in the top 5 best states for drunk driving incidents, this actually could mean that New Jersey law enforcement officials take DUIs/DWIs even more seriously. This is backed-up by the fact that there was a 31.1% decrease in incidents from the previous year.

Remember, to be considered intoxicated under New Jersey law, drivers only need to have a blood alcohol concentration (BAC) of 0.08%. For some drivers, one drink is enough to reach this level. If a driver is found impaired at any time while operating a motor vehicle, the penalties will be severe, including significant fines, loss of driving privileges, and even jail time.

At the end of the day, one drink can mean the difference between driving legally and being convicted of drunk driving – which might mean losing the ability to provide for your family or loved ones. If you or someone you know is charged with driving while intoxicated, we recommend you seek the advice of an experienced DWI attorney immediately. An experienced drunk driving lawyer will be able to take the time, sit down with you and review your case, and explain what consequences you are facing in your specific situation. If you go to court, an experienced lawyer can help argue on your behalf to get you the best result possible.

New Jersey DWI Lawyer Edward M. Janzekovich Can Help Drivers Facing DUI/DWI Charges

New Jersey law enforcement officials take drunk driving extremely seriously. If you or someone you know is charged with a DUI or DWI, it is extremely important that you have someone on your side who will take your defense just as seriously. An experienced DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

New Jersey Drunk Driving Attorney Discusses Prom Season, Graduation, Summer, and the Extreme Consequences of Underage Drinking

New Jersey Drunk Driving AttorneyProm season and graduation season are here and the New Jersey police are taking underage drinking seriously this year. With prom underway, graduation nearing, and the excitement of summer vacation and college freedom looming, it’s not consider the dangers associated with this behavior, drinking alcohol before the age of 21 is illegal in the Garden State. But as with many laws, there will always be those who decide to risk it, and many teens don’t always think before taking every action.

With this in mind, police departments across the state are gearing up to ensure the safety of high school students during these annual occasions. This includes generally being on high alert for young drivers, as well as DWI checkpoints. For example, the Middlesex County Prosecutor’s Crash Investigations Unit is setting up DUI/DWI checkpoints at random that will pop up from now through the end of June. Additionally, law enforcement will be on the lookout for underage drinkers at places like the Jersey Shore, which are especially popular amongst teens at this time of year while off from school.

At the same time, we at the Edward M. Janzekovich law blog are also aware of the serious consequences associated with drinking and driving, especially for drivers who are underage. For that reason, we always recommend that anyone who is charged with driving while intoxicated consult with an experienced New Jersey DWI and drug DUI defense attorney, who has the knowledge and motivation to help.

New Jersey’s Zero-Tolerance Policy

New Jersey takes underage drinking very seriously. Indeed, if you are found driving under the influence of alcohol on prom night, you can expect a zero-tolerance policy. In New Jersey, the legal definition of intoxication for an underage driver is a blood alcohol level of.01%. A teen driver can be prosecuted even if his alcohol level is below the .08% legal limit allowed for adult drivers.

Part of the reason for this increased enforcement is because vehicle accidents are the number one cause of death for young people aged 12 to 19. In particular, according to the National Highway Traffic Safety Administration, approximately 1,000 youth under age 21 die each year in preventable tragedies while celebrating their high school proms and graduations. According to the Insurance Institute for Highway Safety, the months of April through June are some of the most dangerous times of the year for teens, with nearly one-third of alcohol-related teen motor vehicle deaths occurring between these months.

Therefore, the State of New Jersey is looking to combat these numbers by escalating police presence of DUI checkpoints from now through the end of June, and until the end of summer at places like the shore.

Legal Consequences of Underage Drinking and Driving

Even if you are underage and it is your first offense, a DWI conviction could mean the loss of your license for a minimum of 30 days and a maximum of 90 days. You may also be sentenced to community service for a minimum of 15 days and a maximum of 30 days. Persons below the age of 21 convicted of DUI in New Jersey will also be required to undertake a highway safety program or pay fees and penalties as prescribed by the Intoxicated Driver Resource Center. Additionally, your car will be impounded, making it difficult to get to school or work. You may also face insurance rate increases and legal fees that cost thousands of dollars to resolve.

Not to mention, a DUI/DWI conviction will go on your record. Unfortunately, many teens don’t grasp the seriousness of this offense. They don’t realize that you may be required to disclose it on college applications, future job applications and even for financial aid requests. A drunk driving conviction could also make you permanently ineligible for certain jobs in the future.

If you decided to drink and drive before the age of 21, it may seem like a small decision at the time, but the consequences of a DUI conviction can last a lifetime.

New Jersey Drunk Driving Lawyer Edward M. Janzekovich Defends Underage Drivers Accused of Driving While Intoxicated

If you, your child, or anyone else has been charged with underage drinking, it is extremely important to contact an experienced DUI/DWI attorney who can answer all your questions and help defend you against potentially life-altering consequences. You do not need to face these battles alone. A knowledgeable drunk driving lawyer can review the evidence against you and present the best case in your defense. A good DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Breathalyzer Calibration Issues and Challenging DUI Evidence

In recent weeks, the Edward M. Janzekovich Law Blog has covered developments in the case of falsified calibration records for New Jersey’s only official breathalyzer machines – the Alcotest 7110 Mk-III. Questions of false DUI convictions based on unreliable Blood Alcohol Content (BAC) evidence were raised after it came to light that state police Sergeant Marc Dennis may have falsely certified that he calibrated Alcotest devices at various police departments throughout multiple counties. He subsequently received charges for fourth-degree falsifying records and third-degree tampering with records.

Now, it turns out that New Jersey’s case is not an isolated incident. Part way across the country, in Gilpin County, Colorado, a defense attorney is making claims against that state under similar circumstances. The challenges in New Jersey and Colorado, as well as challenges to the reliability of Alcotest results in other states like Massachusetts, demonstrate how important it is to speak with an experienced drunk driving lawyer every time you or someone you know is charged with driving under the influence of alcohol or drugs. Evidence cannot always be taken at face value, and a knowledgeable attorney will know where to look and how to challenge the case being brought against you.

Forgery and a Challenge to Colorado’s Breathalyzer Program

In defending his client, a Colorado attorney recently discovered evidence that could affect the breathalyzer program in that state. Like in New Jersey, Colorado requires that its breathalyzers be regularly calibrated to ensure that they are accurate. A former Colorado Department of Public Health and Environment lab worker has made statements that his signature was forged on important state documents used to certify breathalyzer testing. This means that someone else was using his name to sign off that calibration was performed or performed in a specific way. It is unknown if the tests were ever even performed.

The following photographs, comparing real and forged signatures, were used to support the claims, and former co-workers of the employee have testified that they used his name to sign documents.

Forged Breathalyzer Calibration

The same state worker has also admitted to putting his signature on other forms, to authenticate that calibration tests had occurred, even though he had not seen the tests performed. Other evidence uncovered during this process shows that some of the signatures on calibration certifying documents belong to employees who were not even working at the time their signatures were used.

If the judge in this case is willing to dismiss the DUI evidence based on the falsified breathalyzer calibration documents, it could bring into question many breathalyzer results used in Colorado courts over the last four years.

Why Calibration Records are Important

As a driver in New Jersey, if you are charged with drunk driving, one of the primary pieces of evidence the state may use to try and convict you is BAC evidence based on a breathalyzer test. In some circumstances, this is the only admissible evidence against you and, without it, the prosecution may be forced to dismiss its entire case.
BAC and breathalyzer evidence is also based on science. In the 2008 case of State v. Chun, the New Jersey Supreme Court found that, for BAC evidence to be admissible, both the breath samples and the testing equipment must adhere to stringent guidelines to be considered scientifically reliable as a matter of law.

If the law requires that the government calibrate its equipment in a specific way, it means failing to properly calibrate the machines can cause them to be inaccurate. Even if the inaccuracy is small, that could make a big difference for the thousands of people who are tested on the equipment – some of whom may be found guilty by a very slight margin. For instance, a BAC of .08% is evidence of drunk driving, while a .079% is not.

An experienced DUI attorney makes it his job to find false DUI evidence or falsified DUI records. Without reliable testing, innocent people could be convicted. At the same time, the government should want BAC evidence to be reliable, so that proper convictions are not based on fraudulent evidence. If you or someone you know is charged for driving while intoxicated, a good lawyer will review all the evidence and may even be able to have the case dismissed against you completely.

New Jersey Drunk Driving Lawyer Edward M. Janzekovich Will Work to Defend You

If you or someone you know is charged for driving under the influence of alcohol or drugs, the government must present clear and convincing evidence that you were driving while intoxicated. A knowledgeable drunk driving attorney will know how to review this evidence and present the best defense in the case. An experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

New Jersey DWI Attorney Discusses License Suspension Rules When Your Case is Being Appealed

Man Handing a Police Officer his License

If you are arrested and charged for a DUI or DWI, you should consult an attorney as soon as you can. An experienced drunk driving lawyer will be able to review your case, request evidence that may be time sensitive, explain to you the penalties you may be facing, and help fight the charges against you even get the charges dismissed completely.

If you have already been convicted of driving under the influence of alcohol or drugs, an attorney can still help. Although it may feel like your case is already over, an attorney may still be able to have your sentence changed or have the charges against you dismissed by filing an appeal – especially, if the municipal court committed a miscarriage of justice, meaning it did something wrong or against the rules.

Importantly, one of the most difficult penalties faced by convicted drivers is the loss of driving privileges that can cause you to miss work and not be able to provide for your family or loved ones. While your case is being appealed, an attorney can argue on your behalf so that you do not lose your license, while you are waiting to see if your conviction is overturned.

Loss of Driving Privileges

The first time you are convicted of drunk driving, you can have your license suspended for either 3 months (if your blood alcohol content is between .08% and .09%) or 7 to 12 months (if your blood alcohol content is .10% or greater). If this is the first offense, a judge has a lot of flexibility in deciding how long to suspend a driver’s license, and other factors can increase the punishment, such as if the violation occurred in a school zone or caused an injury. For a second offense, the law requires you to lose your license for 2 years or longer, while you can lose your license for 10 years or more on a third conviction for DUI/DWI.

How Appeals Work

The majority of DUI/DWI convictions occur in Municipal Court. If you are appealing your initial conviction in the Municipal Court, you are asking to have a higher court, the Law Division in your county, review the lower court proceedings to make sure that there is no miscarriage of justice. The Law Division can reverse the conviction or affirm it. If it is affirmed, you may have the opportunity to appeal the case again to the Appellate Division of New Jersey or even the New Jersey Supreme Court.

Postponing License Suspension on Appeal

Last month, the New Jersey Supreme Court affirmed certain guidelines that can help drivers appealing their drunk driving convictions.

Specifically, if you are convicted, the Court allows you to have the period of time you are losing your license suspended while you request to have a higher court review your case.

Postponing, or “staying,” your license suspension does not happen automatically, but if you make an application to the Law Division to stay your license suspension pending your first appeal, the Court should presumptively grant the request. The guidelines, however, provide that you will most likely not be able to stay your period of license suspension if you appeal from the Law Division to the Appellate Division or higher court. If all the higher courts affirm your conviction, you will then be required to carry out the period of license suspension.

The Courts will also look at a number of factors to determine if you are entitled to a stay of your license suspension. The government or prosecutor may argue to the court that you should lose your license immediately if you present a serious threat to the safety of any person or the community. The Court will also look at your entire criminal past and history of motor vehicle offenses, and it may limit your license while the appeal is pending. For instance, the Court may be able to restrict when you drive your car – to or from work only – or require you have an ignition interlock device installed on the vehicle.

Finally, if this is not your first conviction for driving under the influence, the Court may be less likely to grant your request for a stay.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Help If You’ve Been Charged or Convicted of DUI/DWI

Losing your license because you have been driving under the influence of alcohol or drugs can be devastating. If you or someone you know is charged for any DUI/DWI crime, it is extremely important to contact an experienced attorney who can explain what rights you have in your specific situation. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced lawyer can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

New Jersey DUI Attorney Discusses the Field Sobriety Vision Test, Also Known as the Horizontal Gaze Nystagmus Test

Horizontal Gaze Nystagmus TestIf you are pulled over and arrested for DWI in New Jersey, the police have a few options for proving that you were driving under the influence of alcohol or drugs. Two of the things that police officers may do is (1) conduct a field sobriety test, or (2) use an official breathalyzer test, which is meant to determine scientifically if your blood alcohol content (BAC) is over the legal limit of .08%. Because the government is required to adhere to specific and complicated guidelines for administering and maintaining BAC tests and records, it is important that you retain an experienced attorney if you are ever arrested for a DUI. A knowledgeable DUI/DWI attorney will be able to review the records and may be able to have the BAC evidence thrown out so that it cannot be used against you.

If the BAC evidence is thrown out, or otherwise compromised or excluded, then the government will be required to rely on other evidence to prove that you were driving under the influence of alcohol or drugs, such as the field sobriety test. A police officer’s observations and notes regarding how a driver acts or appears, when combined with evidence of the officer’s experience in assessing impairment, can be used to convict a driver of operating a motor vehicle under the influence of drugs or alcohol.

Horizontal Gaze Nystagmus Test

In New Jersey, police officers may ask a driver to do a number of different exercises in an attempt to determine if the person is intoxicated, under the influence of any substances, or otherwise impaired, including standing on one leg, reciting the alphabet backwards, walking in a straight line, or following the police officer’s finger with the person’s eyes. Not all of the tests are admissible in court. The vision test, where a driver is asked to move his or her eyes from side to side, is considered scientifically reliable under the law. This is called the Horizontal Gaze Nystagmus (HGN) test.

Nystagmus is a term to describe fast, uncontrollable movements of the eyes – sometimes also referred to as dancing eyes. Impairment due to alcohol and the use of certain drugs can cause involuntary nystagmus. Accordingly, in the 1970’s and 1980’s, the National Highway Traffic Safety Administration (NHTSA) performed studies to determine if the HGN could be used to reliably determine if a person was operating a car while intoxicated or impaired by drugs, and the studies found the HGN test is 77% accurate in determining whether a person has a 0.10 BAC or more.

What Police Officers Are Looking for When Performing the Test

Police officers are provided with some training in how to perform an HGN test, including what signs of impairment to look for. The guidelines suggest that a police officer is checking for equal pupil size and whether the eyes are jerking involuntarily from side to side while at rest or while tracking an object from side to side. Three specific “clues” that officers are trained to look for include:

  1. The lack of smooth movement from side to side – bouncing rather than rolling smoothly.
  2. Distinct and sustained nystagmus when the eyes are held at maximum deviation and held for a minimum of four seconds.
  3. Onset of nystagmus when the eyes have moved less than 45 degrees to the side.

How a Lawyer May Challenge the Horizontal Gaze Nystagmus Test

Scientific and medical experts have concerns that the administration of the HGN test by police officers may be unreliable because these officers are not ophthalmologist, trained in the detection of eye movements and or eye pathologies. Some experts have also suggested that the NHTSA standards for performing the HGN test could lead to false results. One independent study concluded that, in a controlled laboratory test, police officers were wrong 41% of the time about whether a person with a .10% BAC experienced HGN.

Similarly, HGN can be caused by a number of other things, including injury, tiredness, illness, or medical conditions. In the case of Schultz v. State, a case from Maryland, the court recognized at least 38 medical conditions unrelated to alcohol that can cause HGN, including the flu, consumption of excessive amounts of caffeine, head trauma, some prescription drugs, and exposure to certain chemicals or toxins.

Because a police officer is looking at your behavior, appearance, and how you perform on these tests, your performance on any field sobriety test, as well as your ability to speak to the police officer and answer questions, can help in your defense against a DUI/DWI conviction. At the end of the day, these tests are not perfect and subject to human error. For that reason, it is important to always consult an experienced lawyer. A DUI attorney may be able to fight the charges against you or have the charges dismissed completely.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Can Help if You Are Arrested for Drunk Driving

An arrest for driving under the influence of alcohol or drugs can have life-changing consequences for any driver. Such a charge, and possible trial, can also be extremely complicated, especially when specific tests or scientific evidence is involved. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.