Field Sobriety Tests in New Jersey

New Jersey DWI – DUI Lawyer Edward M. Janzekovich

Field Sobriety Test Attorney in New Jersey

When you think of getting pulled over for suspected drunk driving, you might think of police administering a breathalyzer test to determine whether you are intoxicated. Or you might think of the more “old school” field sobriety tests depicted in so many movies, where police ask a driver to walk in a straight line, follow a flashlight with their eyes, or count while standing on one foot.

In New Jersey, law enforcement officers are supposed to conduct both types of testing. A field sobriety test is often given first at the side of the road, so police can build probable cause to conduct a breathalyzer test later at the police station or take you to the hospital for a blood test. Another reason police have you perform field sobriety tests is because it is used to serve as “backup” evidence in case the breathalyzer results are later found to be inadmissible. However, the results of field sobriety tests are also often inadmissible, because so many factors can invalidate results.

The National Highway Traffic Safety Administration (NHTSA) has developed three specific tests that, if performed properly, are considered reliable evidence of intoxication, but only two of them can be admitted as proof of intoxication in New Jersey:

The Horizontal Gaze Nystagmus (HGN) Test

In performing this test, officers will ask the driver to follow a small object, usually a flashlight or pen, with their eyes. In order for results to be accurate, the object must be held 12-15 inches away from the face and just above the eyes. Not all individuals are appropriate candidates for this test. An officer should check for equal pupil size and other indications that the driver may have a medical disorder, head injury or visual impairment, in which case the test should not be administered. In New Jersey, this test is not considered scientifically reliable and it cannot be admitted as proof of intoxication at trial.

The Walk and Turn

This test involves walking a straight line, heel to toe. Signs of impairment include not keeping balance while instructions are being given, starting before the officer instructs you to, stopping while walking, missing the heel to toe step, stepping off the line, using arms to balance, turning improperly or taking the wrong number of steps. Certain factors create good reasons for challenging the results of this test—for example if a person has balancing problems, is overweight, elderly, wearing high heels, has a knee injury, or if the test is conducted in a bad area such as poor lighting, garbage in the road, or an uneven road surface.

The One-Leg Stand

Officers will require a driver to stand with his or her arms down, and lift one foot six inches off the ground with pointed toes, looking down at the raised foot while counting out loud (one thousand and one, one thousand and two, one thousand and three, etc.) for thirty seconds. Signs of impairment include swaying, use of arms to balance, hopping or putting down a foot. Again, many people are not good candidates for this test. Advanced age, health conditions, inappropriate footwear or terrain all call the reliability of this test into question.

There is no statutory penalty for refusing to perform a field sobriety test, however if you do refuse, a judge is allowed to treat your refusal to do them as if you were too drunk to do them, so make sure you do the tests if asked.

On paper, these field sobriety tests seem simple enough. But are they? It’s late at night, you are tired, police cars are flashing lights, you are surrounded by police with flashlights pointed at you. It quickly becomes a very intimidating experience as you are wondering to yourself if you are going to lose your license and go to jail. This is exactly why if you find yourself in this situation, you need to contact us immediately.

Top New Jersey DWI Lawyer Edward M. Janzekovich Defends Against Invalid Field Sobriety Test Results

Hiring the right New Jersey drunk driving lawyer can mean the difference between a life altering conviction, or a mere bump in the road of your life. To discuss your case, call us at 732-257-1137 or contact us online today. We serve clients in Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

New Jersey Appellate Court Rejects DWI – DUI Refusal Challenge

On January 28, 2016 a New Jersey Appellate Court rejects a DWI / DUI refusal challenge that the Standard Statement police are required to read is defective. The argument is that the Statement does not fully advise a person in custody for suspected DWI / DUI of the exact potential penalties they will be charged with if they refuse to provide a breath sample for testing to determine if they are drunk driving in New Jersey.

The defendant argued thatshe should have been told that the mandatory minimum license revocation would be seven months,” and that “up to 20 years can mean anywhere between 0 days to 20 years.” She also challenged that she should have been told the mandatory minimum fine would be between $300 and $500, and that it would result in her having to install an ignition interlock device in her vehicle for a certain period of time.

In reality, the situation does potentially get even more confusing because in New Jersey – when a person is arrested for suspected DWI / DUI – most times, just prior to being read this Statement, they are also advised of their Miranda Rights, and the police then have them sign a rights card. Miranda says you have a right to remain silent, and the right to have an attorney. Then one minute later, you are read the Statement, which says you have no legal right to have an attorney, that you cannot remain silent, and that you must answer the question.

The take away from this, do not drink and drive, but if you are asked to provide a breath sample by a law enforcement officer, provide it, then hire a New Jersey DWI / DUI lawyer / attorney to help you. (you must supply at a minimum 2 good breath samples for the Alcotest to generate a test result and avoid a refusal charge.)

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Click the below link for the sourced article from the New Jersey Law Journal – January 28, 2016 by Michael Booth

NJ Court Rejects Challenge to Breath-Test Refusal Warnings

 

Contact DUI – DWI Defense Attorney Edward M. Janzekovich

To schedule a free initial consultation, contact my office online or call us at 732-257-1137. Evening and weekend consultations are available by appointment. I accept all major credit cards.

The Office of Edward M. Janzekovich can help if you have been arrested and charged with DWI / DUI in Union County, Ocean County, Monmouth County, Middlesex County, Burlington County, Mercer County & Somerset County.

We also serve the New Jersey cities of Union, Dover, Brick, Jackson, Wall, Woodbridge, East Brunswick, Evesham, Howell, Robbinsville, Bound Brook, Neptune, Hamilton, Linden City, Bridgewater & Tinton Falls.

 

The Ignition Interlock Device – New Jersey DWI, DUI or Refusal to Submit a Breath Sample

DWI-DUI Charges in New Jersey

In New Jersey, if you are convicted or plead guilty to a DWI / DUI or Refusal to Submit a Breath Sample, most likely you will have to install an ignition interlock device in your car. The device essentially works as a bypass to the ignition of your vehicle which requires a breath sample to be supplied before the vehicle will start. It will also require periodic samples as the vehicle is operated for longer time frames to keep it running so as to ensure the operator is not consuming alcohol after the initial start up.

As a first offender with less than a .15% BAC (blood alcohol concentration), the sentencing judge is not mandated to have you install it, although he or she may depending on surrounding circumstances of your incident. Once your BAC reaches .15%, the judge is mandated to order the installation of the device into the vehicle principally operated. The device must be installed all through the period of suspension and an additional six months to one year (judge discretion) after you get your license back.

A first offender who refused to submit a breath sample will be required to install an ignition interlock device as well, with the rationale that the breath sample would have been a .15% BAC or higher. Another reason to provide a breath sample – but most people learn of this incentive after the fact.

As a second offender, it does not matter what your blood alcohol concentration was as long as it was a minimum of .08% BAC. The license suspension for a second offender is 2 years, and the device must be installed in the vehicle principally operated during the entire period of license suspension and an additional one to three years (judge discretion) after you get your license restored.

As a third offender, it does not matter what your blood alcohol concentration was as long as it was a minimum of .08% BAC. The license suspension for a third offender is ten years, and the device must be installed in the vehicle principally operated during the entire period of license suspension and an additional one to three years (judge discretion) after you get your license restored.

A common question is, why do I have to put this device in my car during the period of suspension if I cannot drive anyway. That answer is not clear. Other states have interlock laws and penalties for DWI, and it appears New Jersey copied the laws from other states. The discrepancy is that other states allow you to drive during the period of suspension for very limited reasons.

Other states will grant a very limited purpose license to travel to work or school, and most require you to install an ignition interlock device in your vehicle prior to being granted that class. New Jersey does not offer a temporary, hardship or work only license, as many other states do.

Contact DUI – DWI Defense Attorney Edward M. Janzekovich

To schedule a free initial consultation, contact my office online or call us at 732-257-1137. Evening and weekend consultations are available by appointment. I accept all major credit cards.

Happy Thanksgiving!

Happy Thanksgiving!

Contact DUI / DWI Defense Attorney Edward M. Janzekovich

Contact me online or call my office at 732-257-1137 to arrange a free initial consultation. I am available evenings and weekends upon request. All major credit cards are welcome.

The Law Office of Edward M. Janzekovich serves all of Middlesex County including Edison Township, Woodbridge Township, Old Bridge Township, Piscataway Township, New Brunswick, Perth Amboy, East Brunswick Township, South Brunswick Township, Sayreville, North Brunswick Township, Monroe Township, South Plainfield, Plainsboro Township, Carteret & South River, NJ.

Police Can Search Your Car Without a Warrant…Again.

No Warrant Required

Today, the New Jersey Supreme Court just reversed its position on the Warrant Requirement for searches of motor vehicles. NJ Supreme Court ruled in 2009 that police must obtain a warrant to search a motor vehicle, unless exigent circumstances were present. State v Pena Flores (2009).

This morning they decided in State v Witt, that the exigent circumstances standard set forth in Pena-Flores was unsound in principle and unworkable in practice to obtain warrants. They ruled that: The Automobile Exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous.

The Pena-Flores rule basically required police to request consent to search the vehicle from the owner/operator of the vehicle if probable cause was present, and if denied, they could apply for a telephonic warrant to search the vehicle.  Consent is no longer required.

Allowing a Drunk Driver to Operate a Motor Vehicle in NJ

 

Most people are aware that if they operate a motor vehicle while intoxicated, they can be charged with a DWI offense. But what very few people are aware of is that even if you are not driving the vehicle, you could still be found guilty of a DWI violation.

The New Jersey DWI statute is NJSA 39:4-50. Section (A) of this statute states: Except as provided in subsection (g) (school zone) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of.08% or more by weight of alcohol in the defendants blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of.08% or more by weight of alcohol in the defendants blood shall be subject : The penalties are all exactly the same regardless if you are driving drunk or allowing a person to drive drunk. The New jersey Supreme Court holds the Allowing offense at the same level of responsibility as the act of actual drunk driving, banning any plea bargaining, adhering to the Zero Tolerance policy. In State v Hessan, the Court said ” The act of unleashing a drunk driver onto the highways creates the very risk to the safety of other drivers and the public that is posed by the intoxicated driver.”  However, on an Allowing offense, the State has to prove additional different elements than the original DWI charge.

The State has to prove that the person being charged with the allowing offense had owned the vehicle or had custody and control over it. The State also has to prove that the person being charged with the allowing offense had knowledge of the intoxication of the driver and had their consent to operate the vehicle. These elements are not so easy to prove at times.

A typical scenario for an allowing a drunk driver to operate a motor vehicle violation is when two or more friends go out drinking.  At the end of the night, the driver tells the passengers that he is too drunk to drive home, and one of the passengers decide to drive home because they are only buzzed. The police stop the vehicle, the drunk owner is sound asleep in the passenger seat completely unaware as to what is happening. Both are arrested and charged with DWI.  The same scenario happens if the registered owner of the vehicle is completely sober, in the passenger seat, but the driver is intoxicated. This is typically a husband and wife scenario in the vehicle.

If you or a loved one has been charged with an Allowing offense, you should hire a lawyer whose sole practice specializes in DWI / DUI defense. The facts and circumstances surrounding the allegation of the charge need to be closely examined to identify available defenses and mitigating factors.

The Law Office of Edward M. Janzekovich is a law firm with a sole focus of defending persons charged with DWI / DUI related offenses. The defense strategy used is to identify legal discrepancies in police procedure that implicate constitutional, medical, scientific or evidentiary issues, with the motor vehicle stop, field sobriety tests and blood alcohol tests.

Implied Consent

Most people are aware that if they are stopped by law enforcement and there is reasonable suspicion that they are driving while intoxicated, the driver is required to provide a sample to determine if they are under the influence, but a sample of what?  The law varies from state to state.  For instance:

The Implied Consent Law in New Jersey is different than that of Rhode Island.  In Rhode Island, Implied Consent means that any person who drives a motor vehicle in Rhode Island has given consent to Chemical Test (Breath-Blood-Urine – arresting officers choice apparently) to determine the amount of alcohol/drugs, if any,  in your system after you have been arrested for suspected driving while intoxicated (DWI).   Refusing to provide that sample is an additional charge carrying additional license suspensions and fines. (source – RI DMV website)

The New Jersey Implied Consent Law that states that all persons operating a motor vehicle on New Jersey roadways has agreed to submit to a Breath Test following an arrest for suspected drinking and driving.  In addition to the original underlying penalties of the driving while intoxicated offense, failing to provide a breath sample will result in an additional charge carrying an additional period of suspension and other penalties.

However, New Jersey’s implied consent law does not currently mandate that you submit to a blood test or urine test.  If taken to the hospital as a result of an investigation, such as an accident, you most likely did not perform standardized field sobriety tests.  If you are suspected of being under the influence of an alcohol or drug, you will be asked for your consent to voluntarily provide a sample of your blood or urine to test.  This is because although the breath test machine used in New Jersey, the Alcotest 7110c, is designed to be mobile and transportable to the scene or hospital, it is not the practice in New Jersey.  So to gather evidence of intoxication to be used against you, your blood or urine will be required.

If you believe you have alcohol or drugs in your system, or if you just do not want to, you should refuse to voluntarily give consent for the collection of your blood or urine.  If a DWI charge is to be pursued against you, a judge would have to issue a warrant (Fourth Amendment protections against unreasonable searches and seizures – barring exigent circumstances) for non-consensual blood testing to collect a sample. However, if a warrant is obtained, you are legally required to provide the type of sample described in the warrant and reasonable force may be used to collect that sample if necessary.  Refusing to provide a sample after a warrant is issued will result in an additional charge(s) carrying additional license suspensions and penalties, which may also expose you to potential criminal charges.

So, according to the Rhode Island Division of Motor Vehicle website, a New Jersey resident on vacation, visiting a relative or just driving through Rhode Island that is stopped for a suspected DWI is required to submit to chemical testing.  Chemical testing of your breath, blood or urine, without the need of a warrant, even though as a New Jersey license holder, your implied consent requirements are for only breath samples.

* Disclaimer – Edward Janzekovich is a licensed attorney in the State of New Jersey and not in Rhode Island.  The information provided is to contrast implied consent laws between NJ and RI. Information is obtained directly from the Rhode Island DMV website and this is not to be interpreted as providing Rhode Island legal advice.

Last Call for Alcohol

Last Call for Alcohol – the drink that may get you arrested.
Over the course of my careers as police lieutenant and an attorney, I have spoken and dealt with hundreds of people charged with DWI.  A common theme is the individual is getting ready to leave the bar or friends house to drive home and the “last call” is made and that individual has just one more drink.   They believe they feel fine, and can have one more before they hit the road.  The problem is that by the time that last drink is absorbed into their system, they are now driving down the road.  They now feel the effect of the alcohol and catch themselves weaving, making driving mistakes they would never normally make.

New Jersey does not allow what is referred to as a “Safe Haven” for driving while intoxicated, meaning that if you are driving home and you start to feel the effects of the alcohol, you can pull off to the side of the road and sleep it off or call for a sober driver to come get you.  In New Jersey, once you demonstrate intent to operate a motor vehicle, you cannot reverse it by pulling into a rest stop or the side of the road.  If an officer comes in contact with you within a reasonable period of time from when you were actually operating the vehicle and they can proof it, you can be charged with DWI if you demonstrate signs of intoxication.

As you can see from my prior post containing the blood alcohol charts for men and women, 1 more drink can quickly move you into the Per Se category (.08% BAC or higher) of driving while intoxicated and definitely place you into the Buzzed driver group.  Both of which expose you to the possibility of being arrested for DWI and/or injuring others including yourself.

Many of those people I have encountered over my careers regretted having that last call drink.  Food for thought.

 

 

New Jersey Has Two Ways to be Convicted of DWI – DUI

In New Jersey there are two ways to be convicted of driving while intoxicated.  The first is the Per Se law.  It is illegal to drink and drive a vehicle with a BAC of .08% or more (or operating a commercial vehicle with a .04% BAC or more).  Even if you believe that level of alcohol did not impair you, you are Per Se driving while intoxicated.  However, if your BAC is lower than .08%, you can still be charged with DWI if the amount of alcohol you consumed impaired your ability to operate your vehicle.  This is commonly referred to as “Buzzed Driving” and is prosecuted as an Observation Case.

In an observation case, the investigating officer testifies in front of the judge about his/her observations.  Basically – (1) the reason the vehicle was stopped – traffic violation, motorist aid, accident, and such, (2) initial interactions – conversation with driver, can’t locate credentials, disoriented, slow lethargic hand movements, odor of alcohol, admission of drinking, bloodshot watery eyes, fumbling, dropping documents, slurred speech and such, and then (3) results of standardized field sobriety tests performed.  At this point the judge evaluates the testimony of the officer and defense witnesses to determine if he/she (judge) thinks the person was intoxicated at the time the vehicle was operated.  If the judge thinks so, guilty of DWI.

DWI With Children In Car

Besides the DWI, possession of marijuana, marijuana in a motor vehicle, and the other slew of charges for her outrageous behavior, if it happened in New Jersey, she would probably be charged additionally with Endangering the Welfare of Children N.J.S.A. 2C:24-4(a)(2) because actions of a parent or guardian that expose minors to potential harm that could make them an abused or neglected child are, depending on the circumstances guilty of a 2nd or 3rd degree crime, and Driving While Intoxicated with a Minor Passenger N.J.S.A. 39:4-50.15(c) – because a parent or guardian who is convicted of DWI and who, at the time of the violation, has a minor as a passenger in the motor vehicle is guilty of a disorderly persons offense. The respective statutes describe a Minor for N.J.S.A. 39:4-50.15(c) as anyone who is 17 years of age or younger and a Child for N.J.S.A. 2C:24-4(a)(2) as any person under 18 years of age.

 

Police: Woman street racing with child on-board arrested for DUI

Taylor Viydo, KREM 9:23 p.m. MDT June 8, 2015

Shariah Whitney(Photo: KREM)

POST FALLS, Idaho – The Kootenai County Sheriff’s Office is investigating a woman who was driving while intoxicated with a child in the car on Sunday.

According to police, Shariah L. Whitney was street racing with another vehicle at Spokane Street and West Riverview Drive on Sunday. The other vehicle she was racing lost control and stuck a concrete island, before striking a parked car.

When police arrived, they arrested the Spokane Valley resident for driving under the influence. Officials said Whitney also had her 5-year-old daughter in the car when this happened. Court records showed a 15-year-old was in the vehicle, too.

Police have not said if Whitney will face additional charges for having a child in the car with her.

On Monday, the judge set Whitney’s bond at $3,600. Court records stated that her blood alcohol content registered at more than .20. Police wrote that Whitney also had marijuana with her at the time of the crash.