Possible Defenses for a DWI Charge in New Jersey

A DWI arrest and subsequent conviction can be devastating. Your car insurance premiums may increase by thousands of dollars, your driving privileges will be suspended, you may even lose your professional license or be sentenced to jail. Those penalties don’t even include the court fines, community service, and other fees associated with a DUI in New Jersey.

Fortunately, an experienced NJ DWI lawyer may be able to argue one or more defenses to effectively challenge the charges filed against you. Here are a few of the potential defenses that can be employed to get DWI charges dismissed.

1. Defenses Against the Initial Traffic Stop

Before an officer can pull you over, they must have a “reasonable and articulable suspicion” that you have violated a traffic law or are involved in criminal activity. This is a driver’s right under the 4th Amendment of the US Constitution. If the stop itself was illegal, all evidence gathered from that stop (including breath tests and officer observations) can be suppressed.

• No Reasonable Suspicion: Arguing the officer had no valid, objective reason to pull you over. A “hunch” or pulling you over for “weaving within your lane” (which is not illegal) may not be sufficient.
• Challenging the Checkpoint: If you were stopped at a DWI checkpoint, the defense can challenge its legality. Legitimate checkpoints must follow strict rules, including being pre-announced and using a neutral formula for stopping cars (e.g., every third car) rather than singling out drivers.
• Anonymous Tip: Challenging a stop based on an anonymous 911 call. The tip must be proven reliable and show that the caller witnessed dangerous driving.

2. Defenses Against Field Sobriety Tests (FSTs)

Field Sobriety Tests are subjective “divided attention” tests that are notoriously unreliable. In New Jersey, you have the right to refuse FSTs. While your refusal can be used as evidence of “consciousness of guilt,” it is not a separate offense.

• Improper Test Administration: The officer failed to give the instructions exactly as required by the National Highway Traffic Safety Administration (NHTSA) manual. This is a very common and effective defense.
• Medical Conditions: A medical or physical condition, not alcohol, caused poor performance.
  • One-Leg Stand: Leg, back, or inner-ear issues; age (over 65); or being significantly overweight (50+ lbs) can make this test impossible to pass.
  • Walk-and-Turn: Similar physical injuries or balance issues can affect performance.
  • Horizontal Gaze Nystagmus (HGN): This eye test can be affected by head injuries, inner-ear problems, or certain legal medications.
• Environmental Factors: The tests were conducted on an improper surface (uneven, sloped, or wet ground), in poor lighting, or in bad weather (wind, rain).
• Non-Standardized Tests: The officer used tests not approved by NHTSA (like reciting the alphabet backward or touching your finger to your nose), which have no scientific validation.

3. Defenses Against the Alcotest (Breathalyzer)

New Jersey uses the Alcotest 7110 device. Challenges to the breath test results are highly technical and are a cornerstone of DWI defense. However, unlike SFTs, you cannot refuse a breath test, as per N.J.S.A. 39:4-50.2 (Implied Consent).

• Failure to Conduct the 20-Minute Observation: This is one of the most powerful defenses. The officer must observe you continuously for 20 minutes immediately before you blow into the machine to ensure you do not burp, vomit, or put anything in your mouth. Any interruption (like the officer taking a call or leaving the room) can invalidate the test.
• Improper Machine Calibration: Your attorney can demand the “core foundational documents” (as required by the NJ Supreme Court case State v. Chun). If the state cannot prove the specific machine used was properly calibrated, inspected, and maintained, the results can be thrown out.
• Operator Not Certified: The police officer who operated the Alcotest machine was not certified, or their certification had expired.
• Medical Conditions (False Positives):
  • GERD or Acid Reflux: These conditions can bring “mouth alcohol” up from the stomach, which contaminates the breath sample and leads to a falsely high reading.
  • Diabetes: A diabetic person in a state of ketosis can exhale ketones, which the machine may mistake for alcohol.
• Interfering Substances: You used mouthwash, breath spray, or cough medicine containing alcohol shortly before the test, and the officer missed it during the 20-minute observation.

4. Procedural and Constitutional Defenses

These defenses focus on procedural errors or violations of your constitutional rights by the police.

• No Probable Cause for Arrest: The officer’s observations (slurred speech, odor of alcohol, failed FSTs) were not strong enough to establish “probable cause” to arrest you and force you to take the breath test.
• Miranda Rights Violation: Under the 5th Amendment, police are required to read rights related to a lawyer and silence. This violation occurs failed to read you your Miranda rights before a custodial interrogation. This defense doesn’t get the case dismissed, but it can suppress any incriminating statements you made after your arrest (e.g., “I only had two beers”).
• Failure to Read Implied Consent Warning: Before the breath test, the officer must read you a specific, word-for-word statement about the penalties for refusal. If they read it incorrectly, failed to read it, or couldn’t provide it in a language you understand, a Refusal charge may be dismissed.
• Right to a Speedy Trial: DWI cases in New Jersey are supposed to be resolved within 60 days of the arrest. While this is often extended, an unreasonable and prejudicial delay caused by the prosecution can be grounds for dismissal.
• Failure to Provide Discovery: The prosecution failed to turn over all the evidence (police reports, videos, Alcotest records) to your attorney, violating your right to prepare a defense.

5. Defenses Against the “Operation” of the Vehicle

The state must prove you were “operating” the vehicle while intoxicated. This can be a defense in specific situations.

• No Proof of Operation: You were found in a parked car, but no one actually saw you driving it. If the engine was off and you were, for example, sleeping in the back seat, you can argue you were not “operating” the vehicle and had no intent to drive.
• “Steering Defense”: You were in a car that was being towed or had run out of gas, and you were merely steering it off the road.

Questions about a DWI Charge in New Jersey?

If you have questions about your DWI charge and wish to consult an experienced DUI attorney to learn more about defenses that may be available to you, call (732) 659-9600 or fill out our convenience online form for a free consultation. You can also visit us in person in one of our offices. Don’t hesitate to reach our for immediate assistance.