In order to convict you of a Drunk Driving/DWI offense, the government must prove certain facts. An analysis of the most common of those facts are recited below:
A. Operation of a Motor Vehicle
The statutes that control a DWI Offense require Aoperation of a motor vehicle. While these laws may not apply to bicycles, they do apply to traditional motor vehicles, as well as mopeds and snowmobiles. They will also apply even if you are not operating a vehicle on a public road, (e.g., in your garage, in a private parking lot or on a service road).
Although the term "operation" in the context of a DWI Offense should be understood without confusion or controversy by the ordinary citizen, the concept seems to have been strained by the pro-government bias referenced above. Thus, you can be found guilty if you are intoxicated and asleep in a vehicle with the key in the ignition and the engine off or if you are steering a vehicle down an incline where the vehicle is out of gas and the key in the off position.
B. Under the Influence
You can be convicted of a DWI Offense if you are under the influence of alcohol or drugs, or a combination of both, even if the drug has been legally prescribed or administered. A recent amendment to the statute has broadened its language to include any chemical vapors which, when inhaled, can cause intoxication or inebriation. You do not have to be "drunk" in the common understanding of the word. It is sufficient if either your physical or mental capabilities are adversely influenced to the point where it would be "improper" for you to drive.
The government will usually attempt to establish this component of its case against you with a scientific test (i.e. breath, blood or urine), demeanor evidence (i.e. the symptomology displayed by the citizen at the time of the arrest) and opinion evidence. Notably, you can be convicted of a DWI Offense on the basis of just one of these three categories of evidence.
1. Scientific Tests
If your BAC exceeds .08% you are presumed guilty of a DWI Offense. The mere operation of a motor vehicle where your BAC exceeds .08% is the offense. No other evidence is necessary for a conviction and, for that reason, a case with a .08% BAC is referred to as a "per se" violation.
The most common method of determining a BAC is a breath test, which is usually conducted shortly after the arrest. The equipment usually used to analyze the BAC from an arrestee's breath sample is called a Breathalyzer. 1 Over the last 20 years, New Jersey's Supreme Court has seriously curtailed the nature and extent of the defenses that can be used to challenge the integrity and reliability of this test.
The major defensive challenges that remain relate to: (a) certain physical/ medical conditions of the subject; (b) defects in the Breathalyzer operator's credentials; (c) defects in the equipment; (d) the protocol used by the operator; and, (e) the nature of the measuring tolerances attending the use of a Breathalyzer. Since the scientific test offered by the government, standing alone, can convict you, it is critical that each of these issues is explored zealously and aggressively, and that the trial court is persuaded to analyze them with the most critical of eyes.
Suffice it to say here that these defense issues require an in-depth analysis of the facts specific to every case, and the advice of one or more expert witnesses. The experts I use to develop these issues are Richard Saferstein, Ph.D., and Gary Aramini. Dr. Saferstein was the Chief Forensic Scientist at the New Jersey State Police Crime Lab for approximately 21 years. Mr. Aramini is a former member of the New Jersey State Police who, for over 19 years, tested and calibrated the Breathalyzer, as well as other similar devices, and trained state and local law enforcement agents on the proper use of breath test equipment.
2. Demeanor Evidence
In most DWI and Refusal Offenses the investigating officer will fill out a form called a Drinking Driving Report. This form is conceived to memorialize the investigating officer's observation of your appearance at the time of the stop and the events that follow. This form will identify things like: (a) your ability to walk and stand (i.e. falling, sagging, staggering, swaying, etc.); (b) your speech (i.e. slobbering, slurred, incoherent, etc.); (c) the condition of your eyes (i.e. bloodshot, watering, etc.) or face (i.e. flushed or pale); and (d) your clothing (i.e., disheveled, dirty, etc.).
In addition, the government will request you to perform certain psycho/physical tests which are referred to as Field Sobriety Tests. These tests will be performed at the arrest site and sometimes later at police headquarters. The function of this type of evidence, along with your other symptoms, is to provide the investigating officer with enough information to establish "cause" to require you to participate in a breath test. Evidence of this nature will also be used at trial to establish your level of intoxication. The general idea is that your comportment or demeanor as well as your performance on the Field Sobriety Tests are circumstantial evidence of your guilt.
While a successful attack on a BAC in excess of .08% is seriously circumscribed by the law, one's ability to overcome the intellectual persuasion of demeanor evidence is not as difficult. A police officer's testimony as to your symptomology at the time of your arrest can be counterpoised against a multitude of evidential responses that militate against a conclusion that you were under the influence of alcohol or drugs. For example, people display bloodshot eyes because they are tired or have their contact lens in too long. Your face may be flushed because that is your natural complexion or the complexion you show when you are excited. You may stagger, sway or hold on for support because you have a head injury, problems with your back, knees or hips. You may even have an inner ear problem. Your speech may be slurred because of a head injury or other physical impairment, as well as the stress or the excitement of the moment. Indeed, there is a well-known phenomenon called "black and white fever" 2 where one's anxiety during a police encounter may produce aberrant responses or conduct and, that is especially so, where a large, aggressive police officer may be brandishing his gun or baton.
As to the Field Sobriety Tests, you may not have been able to perform most of these tests even when sober, and that is especially true if you have any physical deficits. You may have failed these tests or performed poorly because you were nervous or because the tests were conducted under stressful conditions, such as late at night, or on a busy road with other cars zooming by or the exercise was performed on a beveled or uneven road surface with poor footing. Finally, these tests may not be probative or admissible because the investigating officer did not give you proper instructions.
In short, more often than not, a good trial lawyer will be able to neutralize the persuasiveness of demeanor evidence, especially if the government does not have a video tape of your behavior at the time of your arrest. Indeed, the government's failure to videotape your demeanor should be developed at trial and the court should be requested to infer that a failure to do so infects the integrity and worth of the police officer's testimony on this issue, especially where the arresting authorities formerly used video tapes or have the capacity to videotape a DWI suspect. The value of this type of argument is seriously influenced by recent developments in the law, where the courts are requiring video tapes of confessions in cases involving serious criminal conduct.
3. Opinion Evidence
Invariably, after the investigating officer testifies about his/her observations relating to your demeanor, he/she will next testify that he/she has significant experience as a police officer in interdicting drunk drivers and, that as a result, he/she is of the opinion that at the time of arrest you were intoxicated. 3
Fortunately, opinion testimony is like a nose, everybody has one. In DWI Offenses you can usually produce the bartender or waitress who served you to contest the police officer's opinion. Alternatively, you can produce the person who last saw you before your arrest or retrieved you from police headquarters so as to obtain his/her opinion as to your level of sobriety.
In summary, while most experienced trial lawyers in this area of the criminal justice system can mount a successful defense to the government's demeanor or opinion evidence, most of the shot and shell of this important battlefield must be pointed at the government's scientific tests and the BAC.
www.ftlucianolaw.com
Frank T. Luciano
147 Main Street
Suite 5
Lodi, NJ 07644
(973) 471-0004
Monday, October 20, 2008
Thursday, October 16, 2008
The New Jersey Drunk Driving Defense Series: The Volatile Environment (1 of 7)
The consequences of a conviction for driving while intoxicated (DWI Offense) or refusing to submit to breath test (Refusal Offense) are enormous. Apart from the personal embarrassment and social stigma associated with a conviction of one of these offenses, the law provides the sentencing court with a whole constellation of penalties, including periods of incarceration, mandatory loss of driving privileges for an extended term and thousands of dollars of financial sanctions. The extent of these penalties increases almost exponentially with the number of prior DWI Offense convictions you may have and whether the offense occurred in a school zone.
(School Zone Offense).
The prospect of success in every legal controversy is influenced by a number of important considerations including the ability of your lawyer, the quality of your evidence and the capabilities of your trial judge. One of the most critical factors, however, is the political and social environment in which the contest is litigated. In order to truly appreciate the nature and extent of your present predicament, it is important that you know about the special environment that affects these types of cases.
Today, 18 million Americans meet the diagnostic criteria for alcohol abuse or alcoholism. Forty percent of all violent crimes were committed by people who were under the influence of alcohol. In 2003, 1.4 million drivers were arrested in this country for alcohol-related offenses, which equates to 1 arrest for every 135 drivers. Drivers with a blood alcohol concentration (BAC) over .15% are more than 200 times more likely to be involved in a fatal crash than a non-drinking driver. Half of all teenage fatalities are alcohol-related. In 1996, 8 young people a day died because of alcohol-related crashes. In 2004, there were over 17,600 alcohol related deaths in New Jersey. The cost for treating the survivors of these crashes averaged $67,000 a person. On a national level and for teenage accident alone, the costs in property damage and health care expenses is $14,000,000,000
The National Highway Traffic Safety Administration reports that nearly 97 % of Americans view drunk drivers as a threat to their families and themselves. Indeed, Americans rank the need for tougher enforcement of drunk driving laws ahead of healthcare, poverty, the environment and gun control. As a result, most, if not all, states have implemented a "get tough" attitude toward drunk drivers.
The compulsion of these political and social factors has produced an extremely hostile attitude toward people accused of DWI-related offenses. In one case, New Jersey's Supreme Court stated that the courts in New Jersey are "working in tandem" with the legislature to "remove the obstacles" that can "impede the efficient and successful prosecution of drunk drivers." This remarkable declaration clearly joins New Jersey's judiciary and its legislators in a common cause to aggressively prosecute drunk drivers. This avowed philosophy is inconsistent with core concepts contained in our federal and state constitutions that require the "separation of powers" of the three branches of government, so as to allow one branch to "check and balance" the others.
There are other considerations that can seriously impede your ability to obtain a successful result in a DWI-related offense. First, all DWI and Refusal Offenses are tried without a jury. They are decided by a municipal court judge, who is appointed by local politicians and is usually familiar with the arresting officers. This is important to know, because a jury of ordinary citizens is more apt to question the credibility of an investigating police officer, than a judge who may have strong contacts in the community where the case is tried. To my mind, the constitutional right to a jury trial is the most sacred of all trial rights that we have as American citizens. To best characterize my perception of this right, I refer to a case where the United States Supreme Court stated that this organic right of freedom is bottomed on an abiding concern for "corrupt or over zealous prosecutors and against the compliant, biased or eccentric judge," as well as a reluctance to "entrust plenary powers over the life and liberty of the citizens to a judge or a group of judges." Your inability to present your defense to a jury is of exceptional concern where, as here, the influences of the current political and social environment can seriously affect the outcome of a DWI or Refusal Offense.
Second, although the federal and state constitutions require the government to assume the burden of proving all elements of its case beyond a reasonable doubt1, the legislation that controls a DWI Offense instructs that if your Blood Alcohol Concentration (BAC) exceeds .08%, you are presumed to be intoxicated and you have the burden of overcoming that presumption. This is yet another instance where New Jersey's DWI statute has turned another important constitutional guarantee on its head.
Third, in an apparent effort to require a rush to judgment, it has been determined that cases of this nature should be resolved within sixty (60) days after the filing of a complaint, which, by necessary implication, seriously compromises your ability to create a well-conceived defense. If, however, you are prepared to try your case within this time constraint and the government is not, the rule somehow loses its compulsion. Stated differently, if you seek an adjournment on the eve of this administrative deadline, you may not get it. If the government makes that same request at that same time, it will generally be granted. Indeed, 2 or 3 subsequent requests from the municipal prosecutor will be met with similar success.
Fourth, there is a well-directed prohibition against negotiating plea bargains in all DWI or Refusal Offenses. Although, a plea agreement may be negotiated in a murder case, your ability to strike a "bargain" that will allow you to plead to something other than a DWI Offense is virtually non-existent. The influence of this rule is such that any municipal court judge, prosecutor or defense attorney who participates in a plea arrangement that violates these anti-plea guidelines may be subjected to ethical discipline.
Finally, if you are convicted of a DWI or Refusal Offense, you will lose your driver's license; no exceptions! There are no provisional or "hardship" licenses available in New Jersey that can apply to a DWI related offense that will allow you to drive to or from work or school.
www.ftlucianolaw.com
Frank T. Luciano, P.C.
147 Main Street
Lodi, NJ 07644
973-471-0004
(School Zone Offense).
The prospect of success in every legal controversy is influenced by a number of important considerations including the ability of your lawyer, the quality of your evidence and the capabilities of your trial judge. One of the most critical factors, however, is the political and social environment in which the contest is litigated. In order to truly appreciate the nature and extent of your present predicament, it is important that you know about the special environment that affects these types of cases.
Today, 18 million Americans meet the diagnostic criteria for alcohol abuse or alcoholism. Forty percent of all violent crimes were committed by people who were under the influence of alcohol. In 2003, 1.4 million drivers were arrested in this country for alcohol-related offenses, which equates to 1 arrest for every 135 drivers. Drivers with a blood alcohol concentration (BAC) over .15% are more than 200 times more likely to be involved in a fatal crash than a non-drinking driver. Half of all teenage fatalities are alcohol-related. In 1996, 8 young people a day died because of alcohol-related crashes. In 2004, there were over 17,600 alcohol related deaths in New Jersey. The cost for treating the survivors of these crashes averaged $67,000 a person. On a national level and for teenage accident alone, the costs in property damage and health care expenses is $14,000,000,000
The National Highway Traffic Safety Administration reports that nearly 97 % of Americans view drunk drivers as a threat to their families and themselves. Indeed, Americans rank the need for tougher enforcement of drunk driving laws ahead of healthcare, poverty, the environment and gun control. As a result, most, if not all, states have implemented a "get tough" attitude toward drunk drivers.
The compulsion of these political and social factors has produced an extremely hostile attitude toward people accused of DWI-related offenses. In one case, New Jersey's Supreme Court stated that the courts in New Jersey are "working in tandem" with the legislature to "remove the obstacles" that can "impede the efficient and successful prosecution of drunk drivers." This remarkable declaration clearly joins New Jersey's judiciary and its legislators in a common cause to aggressively prosecute drunk drivers. This avowed philosophy is inconsistent with core concepts contained in our federal and state constitutions that require the "separation of powers" of the three branches of government, so as to allow one branch to "check and balance" the others.
There are other considerations that can seriously impede your ability to obtain a successful result in a DWI-related offense. First, all DWI and Refusal Offenses are tried without a jury. They are decided by a municipal court judge, who is appointed by local politicians and is usually familiar with the arresting officers. This is important to know, because a jury of ordinary citizens is more apt to question the credibility of an investigating police officer, than a judge who may have strong contacts in the community where the case is tried. To my mind, the constitutional right to a jury trial is the most sacred of all trial rights that we have as American citizens. To best characterize my perception of this right, I refer to a case where the United States Supreme Court stated that this organic right of freedom is bottomed on an abiding concern for "corrupt or over zealous prosecutors and against the compliant, biased or eccentric judge," as well as a reluctance to "entrust plenary powers over the life and liberty of the citizens to a judge or a group of judges." Your inability to present your defense to a jury is of exceptional concern where, as here, the influences of the current political and social environment can seriously affect the outcome of a DWI or Refusal Offense.
Second, although the federal and state constitutions require the government to assume the burden of proving all elements of its case beyond a reasonable doubt1, the legislation that controls a DWI Offense instructs that if your Blood Alcohol Concentration (BAC) exceeds .08%, you are presumed to be intoxicated and you have the burden of overcoming that presumption. This is yet another instance where New Jersey's DWI statute has turned another important constitutional guarantee on its head.
Third, in an apparent effort to require a rush to judgment, it has been determined that cases of this nature should be resolved within sixty (60) days after the filing of a complaint, which, by necessary implication, seriously compromises your ability to create a well-conceived defense. If, however, you are prepared to try your case within this time constraint and the government is not, the rule somehow loses its compulsion. Stated differently, if you seek an adjournment on the eve of this administrative deadline, you may not get it. If the government makes that same request at that same time, it will generally be granted. Indeed, 2 or 3 subsequent requests from the municipal prosecutor will be met with similar success.
Fourth, there is a well-directed prohibition against negotiating plea bargains in all DWI or Refusal Offenses. Although, a plea agreement may be negotiated in a murder case, your ability to strike a "bargain" that will allow you to plead to something other than a DWI Offense is virtually non-existent. The influence of this rule is such that any municipal court judge, prosecutor or defense attorney who participates in a plea arrangement that violates these anti-plea guidelines may be subjected to ethical discipline.
Finally, if you are convicted of a DWI or Refusal Offense, you will lose your driver's license; no exceptions! There are no provisional or "hardship" licenses available in New Jersey that can apply to a DWI related offense that will allow you to drive to or from work or school.
www.ftlucianolaw.com
Frank T. Luciano, P.C.
147 Main Street
Lodi, NJ 07644
973-471-0004
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