Your Right To Independent DWI Testing

scientistA driver who has been arrested for DWI might be terrified at the consequences he or she faces if there is a conviction. In addition to the embarrassment at being caught in such a dangerous act, there are hefty fines, the possibility of a driver’s license suspension, and raised insurance premiums.
People might not be aware of the rules of the entire process of a DWI investigation. For example, a law enforcement officer is not legally allowed to make a traffic stop on suspicion of DWI without just cause. That means the officer can’t pick a vehicle at random and stop it because he or she feels like it or doesn’t like the look of the vehicle. There must be something – driving too slowly, weaving in traffic, running a stop sign – the predicates the stop.

After the stop has been made the officer will investigate by talking to the driver, asking for the driver’s license and keying in on telltale signs of intoxication such as glassy eyes, slurring of words and the odor of alcohol. Then, if there is evidence, the officer will ask the driver to submit to field sobriety tests. After these tests and if there is still suspicion, the officer will ask the driver to submit to a breathalyzer test.

Breath And Blood Tests

Drivers might think they are allowed to refuse to take a breathalyzer as part of their rights against self-incrimination and the right to remain silent. This is not the case. When a driver receives a driver’s license, there is implied consent that a breath test will be taken when asked to do so. Refusing can result in an arrest for Refusal. The penalties for Refusal are the same as for a DWI conviction and this is independent of an actual DWI charge. Therefore, a person can be innocent of DWI and not have had one ounce of alcohol, but will still be charged with Refusal for not taking the test when asked to do so.

With a breathalyzer test, the results are important. The intention is to determine the blood alcohol content (BAC). A driver who registers a BAC of 0.08% or above will be arrested for DWI. It is possible for a driver who registers below 0.08% to be arrested for DWI if there is sufficient evidence for the officer to believe that the alcohol has led to an inability to drive safely.

Drivers might also be asked to submit to a blood test. While there are no penalties for a refusal to take a blood test, the officer also has a certain amount of freedom to hold the suspect down at the medical center while blood is drawn. In essence, if the officer wants a blood test taken, it will be taken.

Options For Independent Tests

Drivers might want to have their own tests taken because they don’t trust the process when the police handle it. This is allowed under New Jersey law. When a driver is asked to take a breath test, the officer is required to inform the driver that he or she has the right to an independent test if they choose to have one. If a driver makes this request and was not given the opportunity to have it done, it could be the foundation for the charges to be dismissed. The same holds true if the officer didn’t inform the driver that it was within his or her rights to make the request.

Only those who agree to take the breathalyzer test can request an independent blood test. What this means is that a driver who believes that they are not over the legal limit for BAC still can’t refuse to take the breathalyzer test if they hope to prove their innocence with a blood test. When this request is made, the officer must release the driver to a third party who will accompany the driver to the hospital or medical facility for the blood to be drawn. The officer might even call a cab for the person to be taken to have the blood drawn.

How A Defense Lawyer Will Use An Independent Blood Test

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