Not if he has a good DUI/DWI attorney.
Bieber was arrested on January 23, 2014 at 4:13 a.m. for DUI, resisting arrest, and driving with a suspended Georgia License.
He was first arrested for resisting arrest, and then taken to the police station where he allegedly failed the sobriety tests and he gave a breath sample and drug sample. The official results of the breath and drug sample have not been released. However, there are unconfirmed reports that he blew a .04 BAC (blood alcohol content or level of alcohol in the blood). The drug results will take some time to be released. Assuming, there are no controlled dangerous substances in his blood that would impair his ability to drive, it would be very difficult for the State to convict him of a DUI in New Jersey with a .04 BAC. New Jersey doesn’t make it a violation to drink and drive. It only forbids driving over the legal limit which, like Florida, is .08. Thus, if Beiber’s BAC is below .08 the State should dismiss the charge. If convicted for a first offense, the consequences can be found here.
That doesn’t end the inquiry. Beiber is only 19 years old. New Jersey has zero tolerance for under age driving. That means that if you are 21 had some alcohol (level over .01) and drove a car you can be convicted of underage driving. Beiber would face a 30-90 day loss of license, community service, fines and penalties, and mandatory attendance in an alcohol related seminar.
If Beiber was facing these charges in New Jersey and asked me how I would handle his case, this is what I would tell him . . .
- Did the officer have a reasonable suspicion to suspect Beiber was breaking the law? Beiber wasn’t charged with speeding but that was the alleged basis for the motor vehicle stop. Even if the officer didn’t use a radar gun he could testify that in his training and experience Beiber was traveling over the speed limit and initiated a motor vehicle stop. Once the officer had a legal basis to stop him, any evidence the officer observed is fair game. For example, finding Beiber’s license was suspended would be a proper ticket. I want to review the facts surrounding this basis even it doesn’t initially appear to be a winning strategy;
- Did the officer have probable cause to arrest? I don’t believe asking the officer a question and moving one’s arm raises to the level necessary for resisting arrest. In N.J., resisting arrest is a more serious offense than a DUI. The officer certainly didn’t have probable cause to arrest Beiber for DUI/DWI since he had not even asked him to perform sobriety tests. That happened at the station and only after he was arrested;
- I would critically review the conclusion that he failed his sobriety tests given an alleged reading of .04. New Jersey, like Florida, has a minim level of .08 before one is considered driving drunk. Given that Beiber is under 21 I would still challenge the admissibility of the breath sample because evidence of any alcohol can convict him;
- I would review the operability of the breath sample machine and the qualifications and procedure followed by the officer operating the machine. It is the States burden to prove the machine was working properly and the officer followed the proper procedure. If the State can’t meet this burden the breath sample doesn’t get admitted into evidence;
- Was Beiber under the influence of a controlled dangerous substance? How was the sample taken? Who took it? Is there a proper chain of custody? Who tested the sample? What was used to test the sample? Did he or she follow protocol? Depending on what Beiber tells me I would consider having an independent lab evaluate the drug sample; and
- Are the statements admissible? Beiber’s statements were made after he was arrested. If he was not provided his Miranda warnings, the statements should be excluded from evidence.
This is where I would start. As discovery is produced, like the video, audio recordings, police reports, lab and breath sample results, the strategy will likely change. If Beiber was facing charges in New Jersey, he would have a compelling defense.