Charged With A DUI? Assume Nothing

///Charged With A DUI? Assume Nothing

Did you know in New Jersey a person can be sitting at home, maybe watching the Jets play the Giants, and violate the drinking and driving laws of New Jersey?  Suppose Joe has a group of buddies over to watch the game and runs out of beer.  The Jets and Giants game is over, but another great game is on at 4:00 pm. However, all the beer and pizza have been consumed.  A second person offers to make a beer run and grab a pizza, but he rode with someone else and doesn’t have his car. Joe lends him his car to make the beer and pizza run.  If that second person gets a driving under the influence charge (DUI) on the beer run, Joe could be charged with a violation of the law and receive the same penalty as if he had actually been driving.

New Jersey has some tough DUI laws.  The penalties for drinking and driving vary, based on several factors.  Two key issues are the blood alcohol level of the driver and whether the driver is a repeat offender.   In New Jersey a driver who has a blood alcohol content of .08 is considered legally intoxicated. Stiffer penalties are imposed on drivers who have a blood alcohol level of .10 or higher. Penalties are ratcheted up again, if the blood alcohol content is .15 of higher.

Although New Jersey recognizes three levels of intoxication for DUI purposes, there is no such thing as a minor DUI.   A first time offender of the DUI laws who has a blood alcohol level of .08, but less than .10, can lose their driver’s licenses for three months.  Moreover, the court has the discretion to order jail time up to thirty days and the installation of an interlock device on your car.

The above penalties apply for drivers over the age of twenty-one with no prior DUI convictions and who are driving a private or non-commercial vehicle.  Commercial vehicle operators cannot have a blood alcohol content of .04 or higher.  Also, suppose you stop after work to have a few drinks before you go to your son’s ballgame. A conviction on school property raises the penalty.

Many people think that if they take a breathalyzer test (its called the Alcotest in New Jersey) and their blood alcohol level is .08, they cannot win.  That is not true.  There is a defense.   When a person is charged with a DUI, the state has to prove guilt.  For example, take our friend Joe who was sitting at home watching the football game while his buddy went to get pizza and beer with Joe’s car.  The guy making the beer run may have sat at the pizza parlor and had a couple of beers while waiting for the pizza. On the way back to Joe’s house, he was stopped and charged with the DUI.  However, Joe does not have to prove that his buddy became intoxicated at the pizza parlor, the state has to prove beyond a reasonable doubt that Joe’s buddy was intoxicated when he left Joe’s house.

The same is true when a person is charged with driving under the influence.  The state has to prove guilt and prove it beyond a reasonable doubt.  Furthermore, the state must follow a protocol when making a traffic stop. Often that protocol involves constitutional rights.  Before a stop is made, the police must have a reasonable suspicion that a crime has occurred. Without reasonable suspicion, a traffic stop is improper and the evidence gathered can be prevented from being used as evidence against the defendant.

However, neither the police nor the prosecutor is going to voluntarily squash the evidence, even if they know the stop was not valid.  That is why it is important to have an experienced attorney to represent you.  The attorney will examine the notes and records prior to and during the stop.  If the stop was improper, the attorney will make a motion to keep the evidence gathered at the stop from coming in against you.  If you win that motion, the case is over.

Suppose you refused to give a breath sample or the police officer said you were not blowing hard enough for the machine to operate correctly. Does that automatically mean you are going to lose your driver’s license because you did not take the test?  New Jersey is an implied consent state in reference to blood alcohol testing. That means if the police ask you to take a blow into a machine like the Alctoest to give a breath sample and you refuse, your license can be suspended. However, the refusal must be voluntary.  Suppose a person suffers from C0PD, a lung disorder that often makes it difficult or impossible to exhale a large amount of air.  In this case, the driver may not be able to exhale a sufficient amount of breath to comply with the officer’s request. Therefore, his attorney will present these facts to the court.

Let’s move to another scenario. The stop was legal, the driver did give the breath sample and the blood alcohol level was .08. The ballgame is over, nothing to do, but go to court, plead guilty and hope for the best?  Again, not true. How do you know if the machine is accurate?  How do you know if the person administering the test had the proper training?  If the person administering the test had the proper credentials, how do you know he still did not make a mistake?

Often people assume everything is in order, or believe that the State of New Jersey is too big to fight and has too many resources. An experienced DUI attorney knows better.  The attorney makes the state prove its case every step of the way. No assumption is made by the attorney, not the validity of the stop, the accuracy of the breathalyzer, nor the credentials of the person that administered the blood-alcohol test.

Yes, New Jersey has severe penalties for drinking and driving.  First-time offenders face loss of license, jail time, fines and other penalties.  But the state has to prove their case, and an experienced DUI attorney will question everything the state did and make them prove every element of their case.  Andres Mejer, a knowledgeable DUI attorney in New Jersey, can help.

2016-11-11T20:59:10+00:00

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