Part One: Before the Trial
The Holiday Season is upon us, which means that holiday celebrations involving alcohol are in full swing. You may regret that last beer at that Friendsgiving, that extra cocktail at the office holiday party, or that third glass of champagne at the New Year’s Eve party if you are charged with a DUI or DWI this holiday season.
What Happens if You Are Pulled Over for Drunk Driving?
If you are suspected of drunk driving, either on the road, at the site of an accident, or at a checkpoint, you will likely be subjected to certain tests. These are the field sobriety test and a breathalyzer test. The field sobriety test often includes touching a finger to your nose, walking heel-to-toe, and standing on one foot. However, the field sobriety test may not be undertaken if there are other signs of intoxication.
If you fail these tests or are found to have other significant signs of intoxication, you will likely be arrested, then asked to take a breath test. In order to perform a breath test, the police officer must have reasonable grounds to believe that you have driven while intoxicated. N.J.S.A. 39:4-50(a). According to New Jersey statute, “[a]ny person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath…to determine the content of alcohol in his blood.” Id. While the test cannot be performed by force, there are penalties for refusing to take a breath test. N.J.S.A. 39:4-50(e) and 39:4-50.4(a).
The penalties for refusal to take a breath test are: for a first offense, revocation of license for seven months to a year plus $300 to $500 in fines; for a second offense revocation of a license for two years plus $500 to $1,000 in fines; and for a third offense, license revocation for ten years plus $1,000 in fines and a required ignition interlock device. In any revocation of license under this statute, the defendant will be referred to an Intoxicated Driver Resource Center. N.J.S.A. 39:4-50.4(a). The penalties are significantly increased if the defendant was driving on school property, within 1,000 feet of school property, or through a school crossing. N.J.S.A. 39:4-50(b).
If you refuse to take the breath test and are charged accordingly, you may wish to try the case in municipal court. In municipal court, the prosecutor must prove
by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving…on the public highways or quasi-public areas of this State while under the influence [of alcohol or drugs]…; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue.
Under certain circumstances, you may be asked to submit to a blood test. This will likely be some time after your arrest, given that a warrant for your blood should be acquired. Unlike a breath test, a blood test requires a warrant or “exigent circumstances.” This was recently confirmed by the United States Supreme Court in Birchfield v. North Dakota, slip. Op. at 34. The Supreme Court has generally held that drawing blood constitutes a higher possibility of creating privacy issues. Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013). The Court in McNeely ruled that the possibility that the alcohol will dissipate in the bloodstream may create exigent circumstances that would allow the drawing of blood, but that exigent circumstances are not created as a rule. Id. at 1563. Such exigent circumstances must be established on a case-by-case basis. If blood is taken without a warrant or exigent circumstances, any test results will likely not be admissible in municipal or criminal court.
What is the Charge?
If you do get pulled over and charged for drunk driving, you will be specifically charged with Driving While Intoxicated (DWI). By statute, a DWI is defined as having occurred when someone “operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant’s blood[.]” N.J.S.A. 39:4-50(a). According to the Division of Highway Traffic Safety, if you are driving in a way that shows impairment, you can be charged with a DWI no matter what your BAC. (See www.nj.gov/oag/hts/downloads/dui-bro-eng.pdf.)
The number of drinks to get to a 0.08 blood alcohol concentration (BAC) depends on a person’s gender and weight, but can be 2 to 4 drinks in the average healthy woman and 2 to 5 in the average healthy man. Each drink can be 1.5 ounces of 80 proof liquor, 12 ounces of beer, or 5 ounces of wine. Generally, a person eliminates one drink’s worth of alcohol per hour. (These numbers are according to a chart adapted by Lehigh University from the Pennsylvania Liquor Control Board BAC Tables. Find at http://studentaffairs.lehigh.edu/content/bac-and-binge-drinking.)
Of course, the easiest way to avoid getting arrested for a DWI is not to drive drunk in the first place. Don’t drink and drive, and we’ll all make it to 2017 alive, and without a summons to municipal court.
Getting pulled over on suspicion of drunk driving can be terrifying for any driver. If you or a family member has been arrested for driving under the influence, call the Fuggi Law Firm at 732-240-9095 for a free consultation, or visit us at our website www.fuggilaw.com.
*This post is part one of a two part series on Drunk Driving. Come back next week for part two of this series, “Trying the Case”.