A Step-by-Step Guide: How to Beat a New Jersey DWI Before It Happens
1. DWI Prevention and Minimizing Your Initial Risk
The Best Defense is Prevention
This may sound obvious – so let’s get it out of the way quick – and then get into the good stuff. The only guaranteed way to beat a DWI is not to get behind the wheel in the first place. Always plan ahead.
Below is a hypothetical scenario of what to do to if you find yourself drunk driving and interacting with police. We by no means encourage or recommend that people drive while intoxicated or lie to the police.
So let’s get to it – Hypothetically, if you have been drinking and find yourself driving, the next actions you take will dictate whether you avoid arrest, suspension, or even jail. And if you find yourself fighting the DUI case months from now in the courtroom, these measures will be invaluable to weakening the State’s case against you and providing your defense attorney with cache of weapons and ammo to use when attacking the prosecution.
Pull Over Strategically
If you are driving and the intoxication suddenly hits you, you must pull over—but where you pull over is critical. Never pull over on the shoulder of a highway. When the police find you passed out drunk on the side of the highway (ie. NJ Turnpike, Garden State Parkway, etc.) it won’t take a rocket scientist to figure out you must have driven to that location while in an intoxicated state. This is called “circumstantial evidence” – and the prosecution uses it all the time to convict people of drunk driving, even if you are not pulled over.
Instead, pull into a parking lot or park on a residential street. If police eventually make contact with you, it is crucial not to admit that you drove to that location. For instance, telling the cops you drove there versus telling them you got dropped off there or walked back from your friend’s house will have two inevitably different outcomes. Most importantly, never admit that you had an intent to drive from there. In New Jersey, “operation” of a vehicle can be established by your intent, even if the car is off.
Turn the car off completely, remove the keys from the ignition, and move out of the driver’s seat to defeat the legal presumption of “intent to operate.”
2. Conceal the Obvious Indicators of DWI
Never Drive with an Open Container
An open container of alcohol in your vehicle is a dead giveaway that immediately escalates an officer’s suspicion. You would think this would be another obvious one, but you would not imagine the number of DUI’s that involve open containers. Even if the bottle or can is empty, or from a previous night of partying – it is evidence that the police and prosecutor will use against you – don’t give them that opportunity. Bottom line – Don’t make the prosecutor’s job easy!
If you are transporting alcohol of any kind—even empty cans from a prior gathering—keep them strictly sealed and locked inside the trunk of the vehicle where officers cannot claim plain view.
Disguise the Smell of Alcohol
When an officer approaches your window, the very first thing they are looking for is the odor of alcohol. If they smell it, a DWI investigation immediately begins – guaranteed. Be aware of what you are drinking – different alcohols have stronger more pungent and recognizable smells. For instance, beer is much more noticeable and easier to smell than vodka. Moreover, the longer you wait to drive from the time of your last drink is also a huge factor because with time, the smell can lessen or dissipate.
An old State Trooper secret is keeping a small bag of peanuts in your vehicle. The natural oils and strong aroma are remarkably effective at masking the scent of alcohol on your breath. Cigarette smoke also serves as a widely recognized odor concealer.
3. Exercising Your Constitutional Rights
Never Admit to Consuming Alcohol
Police officers are trained to get you to incriminate yourself. When they ask, “How much have you had to drink tonight?” the most common response is, “Only one or two.” This does not help you. The moment you admit to consuming any alcohol, you have given the officer the reasonable suspicion they need to continue the investigation. Even after you initially deny consuming alcohol, the police are trained to continue to press you and say, “Don’t lie to me. I can smell it.” in order to induce you to admit alcohol consumption – don’t fall for it.
You Have No Duty to Speak to Police
It is true that you have to follow an officer’s lawful commands, like when they instruct you to exit your vehicle. However, you are under no legal duty to engage in a detailed conversation with law enforcement. It is always best to be polite and cordial, but if you feel you are too intoxicated to speak clearly, you can politely decline to answer questions.
Never admit that you are coming from a bar, nightclub, or party. Even if you maintain that you had nothing to drink, admitting you were at an establishment that serves alcohol is an automatic red flag that officers use to justify prolonged roadside detention.
4. Field Sobriety Tests are Voluntary
If the situation progresses and the officer asks you to step out of the car to perform Standardized Field Sobriety Tests (SFSTs), you must understand that these tests are designed to be difficult. More importantly, they are completely voluntary.
HGN “The Eye Test”
Do not fall for the Horizontal Gaze Nystagmus (HGN) test. Even people who decline the physical dexterity tests (Heel to Toe & One Leg Stand) think that they can take a simple eye test when propositioned by the police. People assume it’s easy—just follow the pen with your eyes. In reality, the officer is looking for “nystagmus,” an involuntary jerking of your pupils caused by intoxication that you cannot feel or control.
Playing the Long Game
You cannot get into separate legal trouble for declining the SFSTs. If you know you have had one too many or naturally possess poor balance, it is often best to politely decline them. While refusing these roadside tests will usually result in an automatic DWI arrest, you are playing the long game. By refusing, you deny the State the devastating video evidence of you failing coordination tests, putting your DWI defense attorney in a much stronger position to challenge the charges months down the line.
5. The Breathalyzer: To Blow or Not to Blow?
Weighing the Alcotest
If you are arrested and taken to the station, you will be asked to provide a breath sample. In New Jersey, operating a motor vehicle means you have given implied consent to submit to breath testing if an officer suspects you of a DWI. When it comes to advising our clients, we typically recommend that they blow into the Alcotest machine and provide a sample of their breath. There are two main reasons for this (1) you never know what you’re going to blow and it might be the limit; and (2) even if you blow over the limit – the odds are in your favor that the reading gets thrown out. That is because, statistically speaking, our lawyers normally get the BAC readings suppressed the vast majority of times because of improper police officer administration or challenges to machine reliability.
Refusal – Is it in My Best Interest?
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The Cons of Refusing: Refusal is a completely separate offense from a DWI. You can be found not guilty of the DWI but still guilty of Refusal. Under certain circumstances, the Refusal can be punished even more severely than the DWI. For instance, if you refuse, you will face penalties for a first offense that include fines between $300 and $500, mandatory Intoxicated Driver Resource Center (IDRC) classes, and the installation of an ignition interlock device (IID) for 9 to 15 months. At trial, the judge may also consider your refusal as evidence suggesting consciousness of guilt for the DWI.
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The Pros of Refusing: The primary benefit of refusing is that it denies the State the exact blood alcohol level required for a per se DWI conviction. Without that scientific reading, prosecutors must rely solely on the officer’s observational evidence (which you already minimized by refusing the field sobriety tests). Additionally, under New Jersey’s current laws, blowing a BAC higher than .15 triggers a mandatory minimum four-month hard loss of your driver’s license. Conversely, a first-time refusal charge avoids that hard suspension, allowing for a restricted license as long as you install the IID.
A third-offense DWI in New Jersey carries a mandatory 180 days (6 months) in county jail with no parole eligibility. In stark contrast, a third-offense Refusal conviction carries no mandatory jail time under New Jersey statute.
Contact Our Experienced NJ DWI Defense Attorneys Today
If you have been charged with a DWI, DUI, or Refusal to Submit to a Breath Test, you need an attorney who knows how to deconstruct the State’s evidence. The strategies discussed above are just the beginning; defending a DWI in court requires aggressively challenging the legality of the initial traffic stop, exposing flaws in the administration of field sobriety tests, and attacking the highly technical calibration records of the Alcotest machine.
Contact William Proetta Criminal Law today at (201) 793-8018 (Jersey City) or (732) 659-9600 (Edison) for a confidential consultation. Do not just accept a guilty plea; let us build a formidable defense to protect your driving privileges and your future.