Drunk Driving Programs

[Keyser Soze]

i starting to think i should file a motion to vacate my guilty plea after reading this...

"Yes. While defenses have diminished in New Jersey in the past decade, the DWI charge is not tantamount to a conviction. At the outset, it is important to remember the old adage: "innocent until proven guilty." The State (i.e., the Prosecutor and Police) has a constitutional burden to prove guilt beyond a reasonable doubt.

Since New Jersey Law provides that a .10% blood alcohol reading along is sufficient tosustain a conviction, any defense where such a reading is alleged must focus on the reliability and validity of the reading(s) (i.e., was the breath machine operated properly, and was the machine operating properly). If the machine was either not operating properly, or was not operated properly by a qualified technician, it is possible to exclude the test results from evidence or to challenge the veracity of the reading(s).

In addition, in one of the few court rulings which have been Pro DWI-Defendant, a New Jersey Appeals Court recently held that a breath reading of .11% or less may not constitute a per se finding of guilt. see State v. Slinger, 281 N.J. Super. 538 (App. Div. 1995). The Court in State v. Slinger concluded that the breathalyzer machine most commonly used in New Jersey generally may have "an error of plus .015 percent." The significance of this decision is that a .10% reading may actually be as low as .085%, and a .11% reading may be as low as .095%, less than the .10% limit required to convict.

Each case must be carefully and thoroughly analyzed and assessed by experienced and competent counsel and expert consultants in the field of breath testing to screen for possible deficiencies in the operation of the breathalyzer machine and the reliability of the reading.

Assuming that the breath test results can be excluded or compromised, the State may still seek to gain a conviction on what is commonly called "observation" evidence (that you were "under the influence"). The Police Officer(s) will generally testify regarding observations both before and after your arrest (e.g., flushed face, bloodshot eyes, slurred speech, odor of alcohol on breath, leaning on the car for support, etc.). The Officer(s) will also testify regarding your performance on Field Sobriety Tests (FSTs) (e.g., heel to toe, finger to nose, one leg stand, recitation of the alphabet, etc.).

There may be a variety of factors which could have caused the observations and poor performance on the FSTs, each having nothing to do with the consumption of alcohol. Further, the National Highway Traffic and Safety Administration recognizes only three Field Sobriety Tests as reliable scientific indicia of intoxication, and only when these three (3) tests are properly administered and interpreted. Like the breath testing, the observation evidence must be carefully and thoroughly analyzed and assessed by experienced and competent counsel and expert consultants in the area of field sobriety testing to screen for possible deficiencies.

There are, of course, other areas to be explored in properly and thoroughly defending a DWI charge (e.g., Did the police have probable cause to pull the vehicle over?, Are any statements subject to suppression because Miranda warnings were not issued?, to name a few)."