14 WAYS TO CHALLENGE A DWI
1. Illegal Stop – A Police Officer cannot stop a car without having a reasonable and articulate basis to believe that a law has been violated, or that there has been unusual operation of the motor vehicle. Therefore if the Officer can’t or doesn’t give a valid reason as to why he/she stopped your car then your DWI may be dismissed! And sometimes what an Officer thinks is a valid reason to stop a car isn’t a valid, legal reason at all!
2. Illegal Arrest – If the stop of your vehicle is deemed to be valid, then perhaps your actual arrest can be challenged. To be arrested for DWI a Police Officer needs something more than just a reasonable belief that you may be driving while intoxicated. And that “something more” is called Probable Cause. Simply put, an Officer needs probable cause to believe you are driving drunk to arrest you. Often times a big part of the Officer’s probable cause comes from the Field Sobriety Tests results. NOTE: You are under no legal obligation to perform the Field Sobriety Tests.
3. Medical and Health Problems – Medical problems with legs, arms, neck back and eyes can affect the results of field sobriety tests. Other medical conditions can affect the validity of breath test results.
4. Bad Weather – Weather Reports establishing low visibility, high winds, and other conditions can be used to explain poor driving or balance on the field sobriety tests.
5. “Standardized” Field Sobriety Tests May Not Be Reliable Evidence of Intoxication – According to Federal Government statistics, in healthy persons, the one-leg stand exercise is only 65% accurate in predicting someone to be over the legal limit of 0.08% BAC. That’s a D in most school grading systems. The walk-and-turn test is only 68% accurate. Persons with injuries, medical conditions, 50 pounds or more overweight, and 65 years or older cannot be validly judged by field sobriety tests. The eye test (HGN) is not admissible in NJ courts to prove that a driver was intoxicated.
6. Failure to Provide Complete Discovery – If all the required evidence has not been provided, a motion to compel evidence may be filed. If the discovery is still not provided by the date ordered by the judge, then charges may be dismissed.
7. Videos – All New Jersey State Troopers, and many other New Jersey DWI enforcement officers have video cameras in their patrol vehicles. These videos, along with videos from testing rooms, booking rooms, and other sources may assist in defending some New Jersey DWI charges. These videos may show that the field sobriety tests are not as bad as the officers interpreted them. A tape may demonstrate that the driver’s speech was not slurred, or their balance was not swaying or stumbling, and their attitude was not combative or uncooperative. Even if the driver is not visible on the tape, the tape may have audio sound, which may provide information helpful to defend your case.
8. Failure to Conduct Observation Period – If the police fail to keep you under observation for 20 minutes prior to the breath testing, the results of the testing may be excluded in court.
9. Breath Test Operator not certified or certification expired – A NJ Breath Test Operator must possess a valid operator’s license, or the breath test is inadmissible.
10. Breath Testing Machine Malfunctions – If there is a malfunction or subsequent repair of the breath test machine, your test results may not be accurate such a: failure to input correct arrest information; improper machine settings; failure of the machine to recognize errors in testing; failure of the machine on timing issues during the testing. If the prosecutor can’t show that all the proper procedures were followed with the machine, then the results of the testing might not be admitted into evidence.
11. Breath Testing Machine Not Properly Operated – There are specified protocols which must be followed for a breath test to be valid. Failure to follow these protocols can result in improper readings, and may be a reason to exclude the readings in court.
12. Interfering Substances – False breath test results may be caused by many items such as asthma spray, cough drops, paints or fingernail polish, which contain forms of alcohol. Chemicals that you work with or use may cause a false positive results on the breath tests.
13. Drug Base DWIs / Drug Recognition Evaluation (DRE) – If your blood pressure and temperature were taken, and you were induced to perform additional physical tests in the police station, you went through DRE protocol. This protocol has not been proven reliable in New Jersey court.
14. Blood Test Inaccurate – The admissibility of blood testing depends on the procedures used in the taking of the sample preservation of the sample, the testing protocol, and analysis of the sample.