Amid all the fear and concern that a New Jersey driver feels when stopped on suspicion of driving while intoxicated and subsequently arrested, it’s often ignored that law enforcement has certain procedures that they are required to follow to make the arrest valid. If a law enforcement officer fails to follow the rules to making a DWI arrest, the charges might not stand up in court regardless of the circumstances. The following are some mistakes that are frequently made by New Jersey law enforcement officers when investigating and making an arrest for DWI.
Making An Improper Traffic Stop
Police officers can’t just stop a vehicle because they feel like it. There has to be probable cause to do so. In reality, of course, officers can stop a vehicle and find a reason to justify the stop. That strategy, however, will not work in a DWI case. If a driver hasn’t committed any illegal acts, hasn’t exhibited driving behavior consistent with DWI and there haven’t been witnesses alerting law enforcement to a driver who might be drunk, the police officer can’t simply stop the car for no reason. A driver who is arrested for DWI after an improper stop might be able to have the charges dismissed for that reason.
DWI Checkpoints Not Administered Legally
A NJ DWI checkpoint is a common strategy used by law enforcement in areas in which a number of DWIs have been committed or are likely to be committed. This can include a roadway that is near nightspots, bars, parks, beaches, concerts and sporting events. A checkpoint generally counts the number of cars that passes and takes, for example, every tenth car to do a spot check to see if the driver has been drinking. A driver is perfectly within his or her rights to try and avoid the checkpoint as long as no illegal maneuver such as a U-turn is taken. There are rules to putting a checkpoint in place and a law enforcement officer must have approval from superiors to do so. Drivers might not realize that while they are required to give the officer their personal information such as a driver’s license and registration at a checkpoint, they are not required to allow the officer to search the vehicle if such a request is made. The driver can simply say no in a polite manner.
Giving Field Sobriety Tests Improperly Or Unfairly
Field sobriety tests are used by law enforcement as a gauge of whether there is a possible DWI being committed. There are standardized and non-standardized field sobriety tests. Standardized field sobriety tests are three tests that have been approved by the National Highway Traffic Safety Administration (NHTSA). They are the walk-and-turn test, the horizontal gaze nystagmus test and the one-leg stand test. Non-standardized tests are also used by law enforcement, but they are not universally accepted as proof of intoxication. These can include counting backwards and touching the finger to the nose.
With the standardized tests, even if a driver fails there could be a viable excuse as to why. The driver might have a medical condition making the horizontal gaze nystagmus test appear as if it was failed due to intoxication when it really wasn’t. If the road on which the other tests are given was graded or laden with rocks, it could have been difficult for the driver to complete them without appear intoxicated.
If these tests are deemed as having been given in an unfair manner, they might not be admissible in court.
Improperly Administered Breath Test
There’s a misplaced belief that the breathalyzer test results will lead to an automatic conviction if the driver registers a blood alcohol content (BAC) above the legal limit. In New Jersey, drivers age 21 and over who register 0.08% or higher will be arrested for DWI. If the driver is under age 21, the level is 0.04%. If it is a commercial driver, the level is 0.04%. However, many might not realize that the law enforcement officer must also follow certain protocol when giving a breathalyzer test. The machine itself must be properly calibrated and certified to be working correctly. If it is not or if the officer doesn’t wait the required amount of time with a 20 minute observation period of the driver before giving the test, the results could be thrown out of court.
Drivers Need To Understand Their Rights
As frightening as it can be to be confronted with DWI charges, drivers can’t allow that to send them in a self-destructive direction in the aftermath of the arrest. They need to know that law enforcement isn’t an unassailable force allowed to do whatever they want to keep the streets safe at the expense of the citizens’ rights. Drivers whose rights are violated by not being read their Miranda Rights, being given improper or unfair tests, or by being subject to an unjustified traffic stop could have the charges thrown out.
Because the penalties for a DWI conviction can be so severe with hefty fines, surcharges, the loss of driving privileges and potential jail time, drivers need to do anything they can to try and receive an acquittal. That includes knowing what police are and are not allowed to do when investigating a DWI.