1 LEGAL-EZ BOOK SERIES THE TRUTH ABOUT YOUR NEW JERSEY DUI BY Andres Y. Mejer, Esq.
2 Copyright by Andres Y. Mejer, Esq. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission of the author. Printed in the United States of America. Andres Mejer & Associates, LLC 9 Memorial Parkway, Suite B Long Branch, New Jersey
3 FOREWORD If you are reading this book, it is probably because you or a loved one has been charged with a New Jersey DUI. We at Andres Mejer & Associates, LLC understand that you likely have questions. We wrote this book in order to provide you with immediate information and answer your most pressing questions. The Truth about Your New Jersey DUI, covers a wide range of topics. However, keep in mind that no book can cover every possible scenario that can arise in a case. Every situation is different, just as everyone s lives are different. Because of this, we highly recommend that anyone charged with a New Jersey DUI meet with an attorney face-to-face. Just as you should have questions for us after reading this book, we will have questions for you. Only after answering our questions can we or any other an attorney give you real advice specific to your case. This book is intended to be a guide to what lies ahead. With this book, we wanted to offer something that other lawyers don t. Our purpose in writing this book is to educate you so that you can make informed decisions on how to best prepare for what lies ahead and provide you with the tools you need to find the right lawyer to handle your case. Take a look at some lawyer advertising. All the ads look the same: Our mission is to aggressively fight for the rights of our clients Courtroom experience and results that count Free initial consultation When you need the best legal defense We put aggressive and experienced legal representation on your side Slogans and catch phrases do not provide you with the information you need right now to make important decisions about your legal rights. This book should answer most of your questions, but there may still be and probably should be other questions. This is normal. That is where we at Andres Mejer & Associates, LLC come in. We educate you by providing information to help you make good, informed decisions about your case.
4 DISCLAIMER Please note that while our business is to represent persons charged with traffic violations in New Jersey, we neither encourage nor condone irresponsible driving. In fact, we hope that this book will serve to discourage people from such conduct after reading about how these violations are handled in New Jersey and the long term consequence that irresponsible driving can lead to. The New Jersey State Bar requires that we inform you that the information in this book is not legal advice. We are not your lawyers until you enter into a written agreement hiring us to represent you. We can offer suggestions, but please do not misinterpret anything in this book to be legal advice about your case. Each case is different and an attorney can only give you quality legal advice when they understand the specific facts pertaining to your individual case. We must also advise you that the case studies presented in this consumer guide have been modified from real cases in order to provide educational examples. We make no representations that your results will be the same. Each case must be analyzed on its own merits.
5 TABLE OF CONTENTS FOREWORD... 2 DISCLAIMER... 3 Table of Contents... 4 introduction... 5 CHAPTER ONE THE STACKED DECK... 6 chapter TWO what happens after my arrest?... 8 CHAPTER THREE NOT ALL ATTORNEYS ARE CREATED EQUAL -- Common MISTAKES ATTORNEYS MAKE... 9 CHAPTER FOUR common defenses YOUR ATTORNEY SHOULD CONSIDER chapter five consequence of a dui conviction PENALTIES FOR A THE DWI OFFENSE PENALTIES FOR A DUI OFFENSE IN A SCHOOL ZONE PENALTIES FOR A REFUSAL TO SUBMIT TO A BREATH TEST PENALTIES FOR UNDER AGE DRIVING PENALTIES FOR OTHER ALCOHOL RELATED OFFENSES COLLATERAL CONSEQUENCES Chapter SIX: QUESTIONS TO ASK YOUR DUI ATTORNEY? Chapter SEVEN: MOST COMMON dui QUESTIONS CONCLUSION... 30
6 INTRODUCTION CHARGED WITH A DUI AND DON T KNOW WHAT TO DO? Do not worry; we explain the entire process in this consumer guide: First let me congratulate you. By ordering and reading this book you have separated yourself form all those other DUI defendants who will not take the time to educate themselves about what they face. They do not know how to choose a DUI attorney and they will pay dearly for their poor choice. In Chapter One, I want you to understand the Court and the Prosecutor s perspective as to how they view cases like yours. You must know what you are facing. Similarly, in Chapter Two I explain to you the process that you will be following. In Chapter Three, I will explain some crucial defenses you should consider in your case. In Chapter Four, I explain the common mistakes lawyers can make in defending cases like yours. In Chapter Five, I explain the consequences of those mistakes --a conviction. In Chapter Six, I will give you the crucial questions to ask any DUI attorney you interview. If you do not like the answers, leave. Your case is far too serious to waste your time talking to someone who will not be completely candid with you. Lastly, in Chapter Six, I answer some commonly asked questions. This consumer guide is our way of helping you make the best decision in your DUI case.
7 CHAPTER ONE THE STACKED DECK In order to appreciate the nature and extent of your present predicament, it is important that you understand the prism through which the prosecutor and the Judge are reviewing your case. In the most recent study prepared by the National Highway Traffic Safety Administration, it found that in 2008, 11,773 persons died in motor vehicle crashes in the United States involving at least one driver with a BAC (Blood Alcohol Concentration) of.08 or higher. That is 32% of all motor vehicle crash fatalities in 2008, an average of one fatality every 45 minutes, at least one driver was above the legal limit for alcohol. Traffic crashes cost society more than $230 billion each year. Statistics at New Jersey s Division of Traffic Highway safety show that impaired driving is one of the most often committed crimes, randomly killing someone in America every 30 minutes and nearly 50 people a day. Nationally, impaired driving fatalities are on the rise. Almost 18,000 people are killed each year. About 250,000 people are injured. Although every year 1.5 million impaired drivers are arrested, only one arrest is made for every 772 occurrences of driving under the influence of alcohol. Repeat offenders account for a high number of alcohol-related crashes. Studies show that nearly 97 percent of Americans view impaired driving as a threat to the community. Further, a majority of Americans consider impaired driving one of our nation s most important social issues, ahead of healthcare, poverty, hunger, racism and education. Three-fourths of Americans strongly endorse the use of stricter and more severe penalties against impaired drivers, to protect themselves and their loved ones. These social and political factors produce a hostile attitude towards people accused of DWIrelated offenses. Other factors to consider are, 1. Your DWI-related offense will not be decided by a jury but by a locally appointed municipal court judge who is usually familiar with the arresting officers. 2. If your Blood Alcohol Content is over a.08%, you are presumed to be intoxicated and have the burden to overcome that presumption. That is you are presumed guilty! 3. Our legislature has decided that a DWI case should be resolved within sixty (60) days after the filing of a complaint. That limits your ability to present a well thought out defense.
8 4. Plea bargains are prohibited in DWI related offenses. A municipal court judge or prosecutor who participates in a plea bargain is subject to ethical discipline. 5. If convicted, you will lose your driving privileges, no exceptions. There are no provisional or work licenses in New Jersey. You will also face steep monetary fines and penalties. This is the environment that we live in. Society views DWI s as a serious threat. The prosecutor and the Judge are under pressure to quickly resolve DWI s. In other words, the deck is stacked against you. The clock is ticking; make your choice of DUI attorney a smart decision.
9 CHAPTER TWO WHAT HAPPENS AFTER MY ARREST? Following an arrest you will undoubtedly wonder what is next. Your first step should be to hire an experienced DUI attorney to offer solid legal advice. He or she has to understand your unique situation and walk you through each of the following steps: 1. Arraignment. This usually occurs within a few days of your arrest. It is the formal reading of the complaint against you. You are expected to enter a plea of not guilty or guilty. If you hire an attorney prior to this proceeding, often the attorney can waive your presence for the arraignment. 2. Pre-trial Conference. This is usually three to four weeks from the date of your arrest. If your attorney requested and received the police reports and other discovery, the case can be resolved through trial or plea. This rarely occurs, as the State only slows provides the requested discovery. The State s evidence is necessary to determine your best defenses and consult with potential experts. The next court date will be within seven to eight weeks of your arrest. 3. Suppression Hearing. After reviewing the discovery, your attorney will file a motion to suppress evidence if your constitutional rights have been violated. The goal is to limit the evidence that can be introduced at trial against you. The motion is typically brought at the time of trial. 4. Trial. New Jersey does not allow for jury trials in DWI matters. Your case will be heard before a Municipal Court judge. The trial or plea must be within 60 days after your arrest. There are some exceptions to this rule, but the courts exert extreme pressure to adhere to the 60 day deadline. 5. Sentencing. Following a trial or a plea, the Court will impose a sentence. Sentences may include jail time, community service, alcohol classes, installation of an ignition interlock device, and fines. 6. Appeal. If you are convicted, you have 20 days to appeal to the Law Division of the Superior Court of the county where you were convicted. A Municipal Court Judge does not have the final say in your case. 7. Post Conviction Relief. If you are now facing a second or greater conviction, you may try to challenge a prior conviction. If you did not have an attorney or were not well represented, you can try to challenge the prior court conviction. The penalties for a second or third DWI are severe.
10 CHAPTER THREE NOT ALL ATTORNEYS ARE CREATED EQUAL -- COMMON MISTAKES ATTORNEYS MAKE Attorneys have knowledge in a wide variety of areas. But knowledge without experience in defending DUI case s is no help. DWI cases involve a great deal of science, and experience is critical. Because of this complexity attorneys make mistakes which can have profound consequences on your case. You can lose your license, go to jail, pay huge fines and increased insurance rates. Not to mention the effect it can have on your job and family. To protect you, I have prepared some of the most common mistakes I see attorneys make. Mistake 1: Assuming the Case Can t be Won This mistake is huge! After getting the breath test result and the police report, many lawyers will advise you to plead guilty. An experience DUI attorney knows that there are flaws in the road side sobriety tests, the breath test, or alcohol blood level test. The flaws can be challenged through a motion to suppress, evidence of your sobriety, or during cross examination. Although it can be more expensive to fight than plead guilty, the possibility of winning should not be ignored when the consequences are so severe. Mistake 2: Assuming That The Breath Test Rules Were Followed New Jersey has determined that the Alcotest 7110 machine is scientifically reliable. It is the State s burden to show that the machine was working properly on the date in question. Too many attorneys do not realize that there is a proper sequence to conducting breath test, and if not followed, can prevent the admission of the breath results against you. If an attorney does not know the proper procedure they can t challenge those results as unreliable. Too defend you properly your attorney must demand and review pages and pages of discovery which all goes to whether the machine was working properly when you were tested.
11 For example, here are some things to look for: o Was the testing officer certified in its use, and is the certification current? o Was the machine s certification current? o Was the machine calibrated as required? o Where the proper control tests conducted and were the tests successful? o Where the solutions changed timely? o Was your breath sample taken within a reasonable time of your arrest? o How many breath samples were taken and where there any errors? o Where the results of the tests more than.01 apart? o Did you have your cell phone when the tests were conducted? o Where you observed for twenty minutes before the tests was conducted? o Was the mouth piece changed before the test was given? o Where repair records provided? o Where all the data downloads from the machine provided? Mistake 3: Not Challenging the Sobriety Tests If you perform the Standard Field Sobriety Tests and fail, you should consider challenging the results. Only three tests are scientifically validated to predict whether someone is impaired. In order to be valid the proper procedure must be followed. Of those three, one is not admissible in court, the Horizontal Gaze Nystagmus. In order for the two (One Leg Stand and Walk and Turn Test) to be valid the officer must have followed the proscribed procedure. If he or she failed to properly instruct you or failed to properly demonstrate the tests, those results may not be used against you. Frequently, the police deviate from the proper procedure. The greater the deviation the more likely, the evidence will be suppressed. In order to attack this evidence, your attorney must be familiar with the instructions, methods, and grading for the Standard Field Sobriety Tests. He or she can t use what he or she does not know. Mistake 4: Not thoroughly requesting Discovery It is the State s obligation to provide full and complete discovery of evidence it intends to introduce at trial and any potential exculpatory evidence, but only if your attorney requests the information. A DWI case is about proper procedure. If the police do not follow the proper procedure for the stop or the sobriety tests, those are flaws to be exploited. If the Alcotest machine was not properly working then breath test results may be suppressed. If your attorney does not know what requests to make or what the discovery should show, he or she can t spot the flaw that may otherwise have won your case.
12 Mistake 5: Not Reviewing the Scene of the Arrest The Standard Field Sobriety tests are supposed to be performed on well-lighted, dry, flat, hard, non-slippery surface. Visiting the scene could can show that the road was slanted, which automatically makes the test more difficult to perform. Similarly, a curving road can explain erratic driving. The goal is to make observations that can be used to question the police s narrative. The State has to prove your guilt beyond a reasonable doubt, to the extent that you can show the impossibility or improbability of the State s version, the better your chances for an acquittal. Mistake 6: Failing to Explain the Collateral Consequences of a Conviction When deciding to plead guilty, you must know all the direct and indirect consequences of a conviction. For example, loss of license, jail time, community service, a significant fine, higher insurance rates, insurance surcharge for three years, inability to rent a car, and potentially loss of your job. If you do not know the consequences before you plead guilty, you certainly will know them when it is too late to help you. Mistake 7: Allowing you to Testify The objective of the defense is to show that the prosecutor has failed to prove the charge beyond a reasonable doubt. By allowing the defendant to testify, the focus shifts to your honesty and credibility. That is not to say that there is never a time for a defendant to testify. For example, presenting a medical condition that would prevent your successful completion of the Field Sobriety Test under any circumstances. There must be a compelling reason to place a defendant on the stand, and it should only rarely be done. Mistake 8: Attempting to Show the Officer Lied The goal is to create doubt as to the State s version of events. A Judge rarely wants to believe an officer is lying. The police are viewed as neutral with a duty to tell the truth, however, that is not to say they are infallible. A Judge is more likely to believe an officer was mistaken, than he or she intentionally lied. Mistake 9: Not Consulting an Expert After requesting and reviewing discovery, an expert is frequently needed to prove that the reports or procedures followed were defective. Getting written reports, when necessary, can help the prosecutor that he or she cannot prove its case beyond a reasonable doubt. At time of trial, an expert can testify as to his or her opinion of why, for example, the field sobriety tests are not a valid indicator of sobriety because the procedures were not properly followed or why the breath results should not be admitted into evidence.
13 Mistake 10: Not Filing A Motion to Suppress Unlike in civil cases, you do not get an opportunity to question a police officer on the record prior to the trial. A motion to suppress is one vehicle to do so. If his testimony is different at the later trial, this can be used against him or her. Even though this motion rarely succeeds, enough inconsistencies can cause doubt with a judge. For example, if the basis for the stop is weaving outside a lane, a video or testimony that the weaving was actually within the lane may make the stop invalid. If the stop was not justified, then the DWI charges will be dismissed.
14 CHAPTER FOUR COMMON DEFENSES YOUR ATTORNEY SHOULD CONSIDER The purpose of this chapter is not to list every possible defense that can arise in your case. Rather, it is to demonstrate that there are many potential defenses from a factual, technical, and legal standpoint. The following is a list of issues that an experienced DUI defense attorney can use to dismiss the charges or suppress key evidence. INVALID STOP 1. The arresting officer did not have a reasonable suspicion for the stop. Our Supreme court has determined that an officer must have a reasonable suspicion of the commission of a criminal or traffic offense before he can stop you. The officer can t simply stop you because he or she does not like the color of your car. If the officer failed to have a reasonable suspicion, then the DUI charge must be dismissed. 2. The basis for the stop was weaving within the lane. In New Jersey, weaving within the lane is not reasonable suspicion to stop a vehicle; the vehicle must weave out of the lane. Today, with the size of some SUV s, what an officer describes as weaving within the lane, could merely be the vehicle moving a couple of inches from the middle of the lane. INVALID ARREST 3. The officer did not have probably cause to arrest. Whereas a challenge to the stop requires the officer to show a reasonable suspicion, challenges to the arrest must meet the higher standard of probable cause. A Judge will consider all evidence, prior to the arrest, in making his or her determination. That does not include breath results which came after the arrest. OFFICER S OBSERVATIONS Many lawyers do not respond to officer s testimony concerning their general observations of the driver. 4. Odor of alcohol. You will rarely, if ever, see a DUI case where the officer does not report an odor of alcohol. Presumably the stronger the odor of alcohol the more intoxicated the person is. The only problem is alcohol has no odor! Assuming the officer actually does smell an odor on the breath, it is not alcohol but the flavoring in the beverage. The flavoring can be deceptive as to the strength or amount consumed. Beer and wine, for example, are the least intoxicating but will cause the strongest odor. At
15 trial and on cross examination, an officer is unlikely to recall whether they smelled beer, wine, or a mixed drink. 5. Bloodshot and glassy eyes. The officer will have to admit that he or she does not know what your eyes normally look like, how long you were awake, or what eyestrain you experienced that day. If you were photographed when arrested, look to see if your eyes looked normal in the picture. 6. Slurred speech. The officer will have to admit that he does not know your normal speech pattern. On cross examination, it is likely that the officer will have no independent recollection other than his reports. Thus, we would ask whether the officer understood what you said, whether you slurred every word or just some words, and when precisely was the slurring (in case it was only when reciting the alphabet). FIELD SOBRIETY TESTS 7. Failure to object to field sobriety tests. These tests were designed to determine whether to arrest an individual not as substantive evidence at trial. 8. Standardized Field Sobriety Tests are inaccurate. The National Traffic Safety Administration (NHTSA) developed three tests that make up the standardized sobriety tests: the Walk and Turn, the One Leg Stand Test, and the Horizontal Gaze Nystagmus Test. NHTSA tests found that the Walk and Turn test is 68% that the individual had a BAC over.08. The One Leg Stand was found to be only 65% reliable. The HGN test is not admissible in New Jersey Courts as evidence of sobriety. In other words, the standardized field sobriety tests have been found to be wrong almost one in three times. 9. Failure to object to admissibility of FST s in certain circumstances. These tests should not be given to an individual who has any injuries that would prevent him or her from taking the test; ear problems, vertigo, or other balance issues; 50 pounds or more overweight; or 65 years or older. Another consideration is the shoes of the individual, so that anyone wearing high heels, heavy boots, flip flops, or sandals should not be performing the tests. 10. Failures to highlight were the tests were given. Most field sobriety tests are conducted on the shoulder of the road. Most should slant to allow rain to run off the highway. The highway may also have rocks and debris. This issue should be evaluated on cross examination.
16 11. The Horizontal Gaze Nystagmus test has not been found scientifically reliable in New Jersey. The test has not been proven to be scientifically reliable in court. Thus, it cannot be used as proof that you were under the influence of drugs or alcohol. It is meant to measure the involuntary jerking of the eye when a person is impaired by alcohol. According to NHTSA, normal, sober people have a nystagmus at high peripheral angles (i.e. when they are looking to the extreme left or right). However, the studies seem to show that those who are impaired by alcohol have exaggerated jerking that can be observed at less extreme angles, such as 45. In conducting this test, the officer instructs a person to keep his or her head still and follow a pen that the officer waves horizontally across each eye. The officer looks for three indicators of impairment: (1) the eye cannot smoothly follow the pen; (2) there is distinct jerking at maximum deviation, and (3) the jerking s angle of onset is within 45 of center. If and officer can identify 4 or more clues, then the officer can conclude that the accused is probably impaired. There are many factors which have been known to cause nystagmus other than alcohol. For example, lack of sleep, caffeine, and cold remedies can cause nystagmus. The officer usually testifies that the defendant is unsteady and swaying, yet when being given the HGN test they remain still with no movement of the head in any direction. 12. The non-standardized field sobriety tests are reliable indicators of impairment. There are no studies showing the finger to nose test, ABC s or counting backwards are valid sobriety tests. BREATH TESTS 13. Failure to request and thoroughly review Alcotest Discovery Records. The Alcotest 7110 is a machine. Like every machine it can break down. It is the State s burden to prove that the machine was in proper working condition on the date in question. There are many things that can go wrong or can put in question the breath sample test results. The most obvious are if the machine logs show errors. The certifications of the machine may no longer be valid, the solutions may not have been timely changed, or the repair records themselves may indicate an unresolved problem. The point is, if the discovery is not studied, the results will be admitted into evidence without objection. 14. Failure to spot issues that come up in a DUI accident case. Typically the police show up after an accident. That means the officer did not witness the accident or see an alleged DUI defendant operating the car. The officer will not know if the defendant was drinking before or after the accident. For that reason, it is crucial that you exercise your right to remain silent. If the alleged drunk driver is injured, he may be taken to the hospital and the only evidence of his sobriety is a blood test. The question then becomes the integrity of the blood testing.
17 I could keep going, but I believe I have made my point. Aggressive, effective, and thorough DUI defense is complicated and you need someone who will evaluate every possible defense on your behalf.
18 CHAPTER FIVE CONSEQUENCE OF A DUI CONVICTION You should be aware from the outset the penalties you can expect from a DUI related charges. 1. PENALTIES FOR A THE DWI OFFENSE 1. What are the penalties for a DUI first offense in New Jersey with Blood Alcohol Content of between.08 to.10%? For the first offense without aggravating factors it depends on the level of alcohol in your blood. If you have a Blood Alcohol Content (BAC) greater than.08% but less than.10%, your costs will be between $1044 and $1194. The Judge s discretion is limited to between $ and $ The remaining costs total $794 and are nondiscretionary: IDRC fee - $230 IDRC attendance fee DWI Surcharge - $100 Drunk Driving Fund - $100 License Restoration Fee - $100 Safe Neighborhood Fund Assessment - $75.00 Violent Crimes Compensation Board (VCCB) - $50 Court Costs - $33.00 Assessments $6.00 You will also face an insurance surcharge of $3,000 payable in three payments of $1,000 per year for three years. You must attend alcohol awareness classes at the IDRC for 12 to 48 hours during two consecutive days of not less than six hours each day. You can be sentenced to up to 30 days in jail. You will lose your license in New Jersey for at least three months. You may be forced to participate in supervised visitation program as either a condition of probation or a form of community service. You may be forced to install an interlock device for six months to a year after the end of your license suspension. 2. What are the penalties for a DUI first offense in New Jersey with Blood Alcohol Content of 10% or greater? If you have a BAC of over.10%, you will be fined between $1094 and $1294. The Judge s discretion is limited to between $300 and $500. The remaining fines total $794 and are non-discretionary:
19 IDRC fee - $230 IDRC attendance fee DWI Surcharge - $100 Drunk Driving Fund - $100 License Restoration Fee - $100 Safe Neighborhood Fund Assessment - $75.00 Violent Crimes Compensation Board (VCCB) - 50 Court Costs - $33.00 Assessments $6.00 You will also face an insurance surcharge of $3,000 payable in three payments of $1,000 per year for three years. You must attend alcohol awareness classes at the IDRC for 12 to 48 hours during two consecutive days of not less than six hours each day. You can be sentenced to up to 30 days in jail. You will lose your license in New Jersey for seven to twelve months. You may be forced to participate in supervised visitation program as either a condition of probation or a form of community service. If your BAC is less than.15% you may be forced to install an interlock device for six months to a year after the end of your license suspension. If your BAC is.15% or greater you will be forced to install an interlock device for six months to a year after the end of your license suspension. 3. What are the penalties for a DUI second offense in New Jersey? For a second violation, fines range from $1344 to $1,844. The Judge s discretion is limited to between $500 and $1000. The remaining fines total $844 and are nondiscretionary: IDRC fee - $230 IDRC attendance fee DWI Surcharge - $100 Drunk Driving Fund - $100 License Restoration Fee - $100 Safe Neighborhood Fund Assessment - $75.00 Violent Crimes Compensation Board (VCCB) - 50 Court Costs - $33.00 Assessments $6.00 You will also face an insurance surcharge of $3,000 payable in three payments of $1,000 per year for three years.
20 You must attend alcohol awareness classes at the IDRC for usually 48 hours during two consecutive days of not less than six hours each day. You will be sentenced from two days to 90 days in jail. The court can allow you to serve two days through IDRC in lieu of jail. You will lose your license in New Jersey for two years. You will do 30 days of community service. You may be forced to participate in supervised visitation program as either a condition of probation or a form of community service. You will be forced to install an interlock device for one year to three years after the end of your license suspension. 4. What are the penalties for a DUI third offense in New Jersey? For a third violation, fines will be $1,844 consisting of Fine of $1,000 IDRC fee - $280 IDRC attendance fee DWI Surcharge - $100 Drunk Driving Fund - $100 License Restoration Fee - $100 Safe Neighborhood Fund Assessment - $75.00 Violent Crimes Compensation Board (VCCB) - 50 Court Costs - $33.00 Assessments $6.00 You will also face an insurance surcharge of $4,500 payable in three payments of $1,500 per year for three years. You will be sentenced to 180 days in jail, however, 90 days of that sentence can be served through a drug or alcohol inpatient program approved by the IDRC. You will lose your license in New Jersey for ten years. You may be forced to participate in supervised visitation program as either a condition of probation or a form of community service. You will be forced to install an interlock device for one year to three years after the end of your license suspension.