Frequently Asked Questions about Drunk Driving Defense
Can a DWI offender plea bargain a DWI case?
Due to current law enforcement trends that focus on the prevention of DWI cases through harsh penalization, most district attorneys refuse to negotiate plea bargains in DWI cases, especially if evidence of the violation is strong. In fact, many states have enacted laws prohibiting government attorneys from entering into plea bargains with DWI defendants. However, rare circumstances may reduce a DWI charge to a lesser offense, such as reckless driving or an open beverage violation.
What is a "Rising BAC Defense?"
It is illegal to have an excessive blood-alcohol concentration (BAC) at the time of driving, NOT at the time of being tested. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC level is likely to continue rising for some time after the individual has stopped drinking. Typically, it is an hour or more after a DWI apprehension when a blood, breath or urine test is administered to a DWI suspect. If the suspect's BAC level measures .10%, and assuming he or she has continued to absorb alcohol since the arrest, the suspect's BAC level at the actual time of driving may have been .07% or lower, depending on when alcohol consumption began. Thus, the suspect's BAC at the time of arrest may have been under the legal limit.
What DWI symptoms is an officer typically looking for?
The traditional symptoms of drug and alcohol intoxication are:
- Flushed face
- Red, glassy, or bloodshot eyes
- Odor of alcohol on breath and in vehicle
- Slurred speech
- Failure to comply with the officer's questions
- Staggering when exiting vehicle
- Instability on feet
- Leaning on car for support
- Combative, argumentative, or other inappropriate attitude
- Soiled or disorderly clothing
- Stumbling while walking
- Disorientation as to time and location
What are the benefits of hiring a DWI attorney? What qualifications are important?
New Jersey Drunk driving criminal defense Attorney John Menzel can review the case for defects, compel discovery of such things as calibration and maintenance records for breath machines, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, etc. A skilled lawyer can also debate if the blood technician received adequate training, or if laboratory staff handled urine samples properly. Since the prosecution relies heavily on the results of breath, blood, and urine chemical tests, any discrepancy in the execution and examination of such tests can prove crucial to their validity.
If I am arrested for a DWI, will I lose my license?
Yes, the law enforcement officer will seize your license if you are arrested for DWI with an unlawful BAC, or after you refuse to submit to a chemical or physical test. Your license will be seized, and the officer will issue you a traffic ticket, which acts as both a temporary driver's license revocation and as your notice of suspension.
How long will I lose my license?
This varies from state to state. However, if you have refused to submit to a chemical or physical test, your license will likely be suspended for a period of one year for a first refusal, or for eighteen months if you have previously refused to submit to such a test. If you have an unlawful BAC, your driving privilege will likely be suspended for six months for a first offense, and one year for a second offense.
Click here, for more information on New Jersey License Suspension Laws.
What are the field sobriety tests a driver is subjected to? Can they be refused?
If a driver is asked to exit the vehicle under suspicion of DWI, there are a range of field sobriety tests that may be administered, and most law enforcement officers will exercise a battery of three to five tests. These tests may include, but are not limited to: heel-to-toe (also referred to as "walk-and-turn"), finger-to-nose, one-leg stand, hand pat, finger-to-thumb, alphabet recitation, and horizontal gaze, which requires the driver to visually trace a flashlight or pen in which to study eye response.
The officer may also inquire as to the amount of alcohol consumed, any drugs ingested, or past DWI offenses, all of which the driver is not required to answer. Although it is likely that an officer has determined the sobriety of a driver, and the need for subsequent chemical tests before even administering field tests, field tests are not legally required and can be refused.
Do I have to submit to a breath, blood, or urine test?
No. However, refusing such tests is generally not a good idea, as the laws of most states permit the motor vehicle department to suspend your privilege to drive. In addition, your refusal to submit to a test upon the request of a law enforcement officer is admissible in any criminal proceeding against you as evidence of your consciousness of guilt. By accepting the privilege extended by the laws of most states to drive, the courts have determined that you have given your consent to submit to an approved chemical or physical test of your breath for the purposes of determining your BAC, and to a urine test for the purposes of detecting the presence of drugs. Therefore, when you sign your name on your license, you are saying that if stopped for a possible DWI, you will accept to take the test.
Can I fight my DWI arrest?
Yes. You may request a review of the driver's license suspension by the department of motor vehicles within a specified number of days following your arrest. At a formal review, the hearing officer is authorized to administer oaths, examine witnesses, and take testimony. If you request an informal review hearing, it shall consist solely of an examination by the department of the written materials submitted by the arresting officer, as well as anything you wish to submit. However, you generally cannot attend an informal hearing.
If you are charged anywhere in New Jersey and need the assistance of an experienced Drunk Driving/criminal defense lawyer, contact Attorney John Menzel of the Law Offices of John Menzel today at (866) 292-1579, or use the contact form provided on this site to schedule a free consultation with an experienced New Jersey DWI defense lawyer.
