Law Office of Elliot H. Fuld
  • Home
    • En Espanol
  • Criminal Defense
    • Assault
    • New York Criminal Defense Practice
    • Domestic Violence
    • Drug Crimes
    • New Jersey Expungements
    • Traffic Court
  • Civil Practice
    • False Arrests
    • Personal Injury
    • Real Estate
  • Who We Are
  • Contact Us
  • Fuld Disclosure - Legal Blog

No Breath Test, No Problem? Think Again - Observational DWI

12/26/2012

1 Comment

 
During the holiday season, many police departments place special emphasis on DWI patrol and detection. The police know that during the month of December and through New Years day, many families and offices host holiday parties and serve alcohol to those in attendance. The police do not care about the parties themselves, but rather look out for all the guests who decide to drive home from a party after drinking.

Unfortunately, many drivers have the misconception that they are susceptible to DWI charges if they only had one or two drinks. This misconception is based on the notion that DWI charges depend solely on a breath test which determines a driver’s Blood Alcohol Content (BAC). However, both New Jersey and New York have TWO methods by which a court can find a driver guilty of DWI.  The first method hinges on a breath test which determines a driver’s BAC. This is called Per Se DWI.  If the test was properly administered and the machine, properly calibrated, produces a reading of 0.08% or above then the driver is facing a nearly certain Per Se DWI conviction.

The second type of DWI conviction is often referred to as Observational DWI and is based on factors independent of a driver’s BAC. Observational DWI, as its name suggests, can be founded on any observation of an officer or witness. These often include an odor of alcoholic beverages emanating from a driver’s breath or vehicle, slurred or nonsensical speech, bloodshot and/or watery eyes and anything else that one might see, hear or smell which leads to the conclusion that the driver was intoxicated. Additionally, officers can ask a driver to perform field sobriety tests which assess the driver’s balance and coordination. A poor performance on these tests will also support a finding of DWI. Finally, any statement made by the driver will be used against him should the statement indicate that the driver consumed alcohol before operating the motor vehicle. All of these factors can combine and support a court’s finding that a driver is guilty of DWI despite the absence of any breath test evidence.

It is important to understand that the law prohibits driving while intoxicated. While the most often discussed method of proving intoxication is the use of breath test machines, drivers can also be found guilty of DWI based solely on observational evidence.  A driver who faces Per Se or Observational DWI charges should talk to a Traffic Court attorney as a thorough cross-examination of the arresting officer is crucial to the driver’s defense. If you have been charged with DWI, contact our office today to set up a free consultation.

1 Comment

The Criminal Implications of Refusing a DWI Breath Test

7/18/2012

2 Comments

 
Both New York and New Jersey have laws known as DWI Refusal Statutes. In N.J.S.A. 39:4-50.4a, New Jersey makes it a crime for a person to refuse to take a chemical breath test after having been arrested for Driving While Intoxicated (DWI). Similarly, NY VTL § 1194 requires a driver to submit to a chemical breath test if there were reasonable grounds to believe the driver was operating a motor vehicle while intoxicated. In both states, refusal to submit to a chemical test results in an immediate charge of Refusal DWI, an offense carrying the same sentencing guidelines as regular DWI.

The Refusal statutes are based on the presumption that anyone who drives within NY or NJ is deemed to have given consent to a chemical test in order to determine the alcohol or drug content in the driver’s blood. In other words, when a person decides to drive a vehicle in either NY or NJ, that person is deemed to have simultaneously agreed to provide a chemical test sample when asked to do so by an officer. Unfortunately, a suspect cannot “plead the Fifth” because the Constitutional Right against Self-Incrimination offers no protection for drivers in this situation. The privilege is only a bar against compelling verbal communications or testimony and does not protect against the compulsion of real or physical evidence[i], such as a breath, urine or blood sample.

Once a driver has been charged with Refusal DWI, the burden is on the prosecutor to prove two crucial facts in order to convict a suspect. The prosecutor must demonstrate beyond a reasonable doubt that (a) that the police officer had probable cause to believe the suspect was driving a vehicle while intoxicated and (b) that the suspect refused to take the chemical test. If a police officer lacked a proper basis to ask a driver to submit to a chemical breath test or the prosecutor cannot demonstrate that the suspect actually and knowingly refused, then the Refusal charge will be dismissed.

If you, or someone you know has been arrested for Refusal DWI, contact a defense attorney today to learn about your rights and how to best defend against the charges going forward. Contact us today to set up a free consultation.


[i] Schmerber v. Cal., 384 U.S. 757, 764 (1966).

2 Comments

    Fuld Disclosure
    A Legal Blog


    About the Author

    Prior to joining the office, Judah Fuld served as the Law Clerk to the Honorable David H. Ironson, Superior Court of New Jersey, Criminal Division. Judah first appeared in court as a member of the Fordham Criminal Defense Clinic and has since expanded his work to various areas of criminal and civil law. 

    Contact an Attorney

    Archives

    April 2014
    December 2013
    October 2013
    May 2013
    March 2013
    January 2013
    December 2012
    October 2012
    July 2012
    June 2012
    May 2012
    April 2012
    March 2012
    February 2012
    January 2012

    Categories

    All
    Accident Law
    Alternative Program
    Arrest
    Bail
    Buying A Home
    Civil Rights
    Consensual Search
    Controlled Substance Arrest
    Criminal Defense
    Criminal Law
    Criminal Possession
    Criminal Procedure
    Diversionary Program
    Drug Crimes
    Dwi
    Elements Of A Crime
    False Arrest
    Felony
    Larceny
    Miranda Rights
    New Jersey Criminal Law
    New York Criminal Law
    Personal Injury
    Possession Of A Controlled Substance
    Real Estate
    Right To Counsel
    Right To Remain Silent
    Robbery
    Scope Of Consent
    Search
    Self-Defense
    Shoplifiting
    Slip And Fall
    Statute Of Limitations
    Theft Crime
    Traffic Law
    Weapons Arrest
    Wrongful Arrest

    RSS Feed

     Attorney Advertising 
    This web site is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
    Prior results do not guarantee future similar outcomes.

Powered by Create your own unique website with customizable templates.