New Jersey DWI Arrest? (Useful Info Revealed That May Help Your Case) Authored By Paul Lang Copyright 2012, Young, Klein & Associates, LLC Page 2
DISCLAIMER: This publication is intended to be informational only. No legal advice is being given, and no attorney-client relationship is intended to be created by reading this material. If you are facing legal issues, whether criminal or civil, seek professional legal counsel to get your questions answered. Young, Klein & Associates, LLC 396 White Horse Avenue Trenton, NJ 08610 www.ykacrim.com (609) 402-9117 Copyright 2012, Young, Klein & Associates, LLC Page 3
TESTIMONIALS: "I highly recommend Young, Klein & Associates, LLC. My experience with Paul Lang at that firm exceeded my expectations both in terms of the outcome and the professional handling of my case every step along way. Experiencing my first arrest ever meant picking a lawyer. I could not have been happier with the way Paul Lang at Young, Klein & Associates handled my case. He negotiated a fair settlement and helped me understand the process." Bill D.... "I am writing you this letter to thank you for your capable and professional representation on my behalf. I have not had a great deal of experience where I have needed representation in a criminal charge so I have to admit I didn t know what to expect. I thank you for directing me in the right direction, for having superfluous charges dropped and encouraging me when I was doubtful. In short I simply thank you for a job well done. It will be my pleasure to recommend you should the opportunity present itself. Again, I appreciate your help and support." Joseph G. Copyright 2012, Young, Klein & Associates, LLC Page 4
TESTIMONIALS: "I just wanted to thank you for representing me, as I was not able to thank you after the court proceeding. I am extremely happy with the outcome. Thanks again for your help and counseling." Mark B.... "I wanted to take a minute to thank you for your help in court today. I was quite nervous coming in, but I can tell I m in good hands now. Thank you and take care." Levin H.... Copyright 2012, Young, Klein & Associates, LLC Page 5
TABLE OF CONTENTS Attorney Introduction...8 Common Misconceptions About a DWI Charge in the State of New Jersey 10 What Will Occur If You Are Stopped By the Police and Suspected of Driving While Intoxicated?...12 Defending the Results of the Breathalyzer Test.16 What Is Your Attorney s Job Prior to Your Trial Date?...20 What Will DWI Charges Entail?...25 Being Charged With a DWI: When Will Your License Be Suspended?...28 A DWI Charge: Reasons Why You Should Consider Retaining a Defense Attorney.30 Copyright 2012, Young, Klein & Associates, LLC Page 6
TABLE OF CONTENTS DWI Is an Equal Opportunity Charge 35 Drug-Related DWI Charges...38 It Can Be Difficult To Gauge How Much You Had To Drink..44 Copyright 2012, Young, Klein & Associates, LLC Page 7
ATTORNEY INTRODUCTION Paul: My name is Paul Lang. I am an attorney at Young, Klein and Associates. I am a DWI lawyer in New Jersey, and we have multiple offices throughout New Jersey. Our practice serves individuals who have been charged with driving while intoxicated. To offer some background information on myself, I am a graduate of the United States Coast Guard Academy. I served in the Coast Guard as a Federal Law Enforcement Officer for eight years. I attended the University of Maryland where I received my law degree and my MBA. His Practice Concentrates in DUI and DWI Defense Interviewer: Do you focus exclusively on DWI now? Paul: Yes, focusing in DUI and DWI defense seems to have become prevalent for New Jersey. Copyright 2012, Young, Klein & Associates, LLC Page 8
Interviewer: I'm running into more and more specialists in DUI, DWI, because from what I'm hearing the science is complicated, intricate, and it's very rewarding to work in that field. Paul: Yes, it truly is rewarding to work in this field. Interviewer: So how long have you been practicing criminal defense law and focusing on DUI defense? Paul: I have been defending clients in this area for five years. Interviewer: How many cases do you think you've seen in that time? Paul: I would say I have probably handled about 500 cases. Copyright 2012, Young, Klein & Associates, LLC Page 9
Common Misconceptions About a DWI Charge in the State of New Jersey Interviewer: So when people come to you and they've been accused of DUI, what are some of the top misconceptions they have that you have to dispel right off the bat? Paul: Well, in New Jersey the biggest misconception is that people think it's a simple traffic matter. They don't realize the severity of the punishments that the State of New Jersey imposes upon people convicted of a DWI. Specifically, most people are shocked to know that even the lowest tier of a DWI is a three-month loss of license. And what they also don't realize is there is no such thing as a work license or an occupational limited license in New Jersey. They just think that they'll at least be able to drive to work, and that's not true. Interviewer: What are some of the other misconceptions people have? First, it sounds like it's Copyright 2012, Young, Klein & Associates, LLC Page 10
not a very serious thing; maybe they could just try to handle it on their own without an attorney. That s misconception. What other misconceptions do they have? Paul: The other real big misconception is that people think that the charges of a DWI can be dropped because New Jersey had quite a long and lengthy history of lawyers having the ability to plea bargain the cases. It has been explicitly determined through legal cases that you can no longer plea bargain down a DWI. In fact, it was the State of New Jersey vs. Hessen that prohibits plea agreements in municipal court drunk driving cases. So, the alternative is that you have to have an attorney who knows how to fight the charge because in fighting that ticket you can have the charges reduced or dismissed by the prosecutor. Possibly, they can be amended to a lesser charge, something other than a DWI, but not out of any favor, but out of principled argument and legal facts that would allow the prosecutor to come to that determination. Copyright 2012, Young, Klein & Associates, LLC Page 11
What Will Occur If You Are Stopped By the Police and Suspected of Driving While Intoxicated? Interviewer: When people are pulled over and they're ticketed and cited for DWI in New Jersey are they usually arrested, or are they just released at that point? Paul: No, they are first detained for further investigation through the field sobriety tests. Then, typically they are transported to a police facility for the administration of the Breathalyzer test. Field Sobriety Tests Interviewer: So, first when someone is pulled over for DWI in New Jersey they are probably asked a series of questions, and they have to get out of the car and do things such as follow the pen with your eyes, walk a straight line, count the alphabet, things like that? Paul: Correct. What happens is the police cannot pull someone over just because they suspect that they are under the influence. They have to have probable cause. And that's related to a traffic violation, and that traffic violation could be a headlight out, your Copyright 2012, Young, Klein & Associates, LLC Page 12
tags are expired, you're swerving, or failure to stop at a stop sign. Then upon further investigation, the officer in his or her investigation determines that the person may be under the influence of alcohol. And then that gives them the probable cause to continue the investigation through the Field Sobriety Test and the subsequent Breathalyzer test. Interviewer: So, initially, a police officer will notice that you're either committing a traffic offense or something's going on and they'll pull you over. Paul: Right, or if it's after midnight, they'll probably just make something up and pull you over. Interviewer: Then if they suspect that someone's impaired, intoxicated, they'll ask them to get out of the car, and they'll do field sobriety tests, right? Paul: Yes, that is correct. Can You Pass the Field Sobriety Tests? Interviewer: What happens after that, when someone does these tests, does it matter, first of all, if they pass or fail? And what will happen to them? Paul: Well, you know, it's extremely frustrating as a DWI lawyer to read the narrative from the officer as they describe the performance on the field sobriety tests. Studies have shown that there are a high percentage of sober individuals who fail the field sobriety test. Copyright 2012, Young, Klein & Associates, LLC Page 13
The other attorneys and I go to this class. And the first lessons they begin with in the morning are bringing up all the lawyers and have us perform the field sobriety test. The only thing we have in our system is coffee. And a trooper will walk down the line and say, Okay, you failed that part. You failed this part; you failed that, you failed that. This is because the test is challenging, and sometimes it's not administered correctly by the police officer. So that's a very good point of frustration. If there's video to corroborate the failure of the officer or trooper of administering these tests, or if the video shows a contradiction in what the officer report is that's a good start in defending the case. Interviewer: If you failed the field sobriety test, not only would you be arrested, but does that you're probably going to end up guilty? Failing the Field Sobriety Tests Will Further the Police Investigation Paul: It's essentially step one for the officer to establish general impairment. In New Jersey, Breathalyzer Tests Are Usually Administered at the Police Station Interviewer: What will happen then? Will they have you do a preliminary Breathalyzer test at the roadside, or will they take you back to the police station? Copyright 2012, Young, Klein & Associates, LLC Page 14
Paul: Sometimes it's at the roadside, but most often it is not. The test will be done at the police station, because of a very big court case. Interviewer: So the officer takes you back to the police station next, and have you do a breath test, blowing into this big ancient-looking machine? Does Your Attorney Have Training to Correctly Interpret the Breathalyzer Readings? Paul: Correct, and in fact, I wanted to mention that I completed the operator training course for what they call the Draeger Alcotest. Part of the court case I just referred to is called the Chun Decision. Mr. Chun is the person who forced the state to create some standardization in the administration of the breath test. And one of the requirements was that Draeger would afford attorneys the opportunity to participate in the Alco test Operator training course. Well, what happened was they meet the letter of the law, which is essentially that they very infrequently offer the training. It's extremely costly, and so not many lawyers have been afforded the opportunity to be certified in it. Interviewer: What have you learned from the training that you otherwise wouldn't know with the breath test? Paul: The training is that the machines are somewhat antiquated. They can have false positive results, and Copyright 2012, Young, Klein & Associates, LLC Page 15
when there's a human administering the test that human can make mistakes. That human cannot wait the appropriate amount of time between breath samples. They may not meet the appropriate amount of time for the observation requirements. The machine itself may not have been certified in a timely manner. Defending the Results of the Breathalyzer Test Interviewer: Okay, so the next step is someone's going to have to sit down and take this breath test. If someone takes the breath test and they fail by blowing a 0.08 or above they're not necessarily doomed, and there are defenses to the reading on the test, right? Paul: Correct, and any DWI attorney worth their salt will go through with a fine-tooth comb. But you have to know what you're looking for. Being Classified As Refusing: to Take the Breathalyzer Test Interviewer: Is it common in Copyright 2012, Young, Klein & Associates, LLC Page 16
New Jersey that people are accused of refusing the breath test when they didn't mean to refuse it? Paul: Yes, and there are multiple reasons. Sometimes the officers are not fulfilling their job responsibility, and if a person wants to understand what they're rights are they will just mark it down as refusal. Sometimes with an individual there are language barriers. There are age issues. There's a lack of understanding of what they're signing when they are consenting to it, and sometimes the officers will mark it as a refusal. What Will Occur if Your Breathalyzer Results Are Over the Legal Limit Interviewer: What happens if you blow over, are you charged, and what happens if you either are marked 'refused' or you do refuse? Are there any additional penalties in regard to your DWI charges? Paul: Yes, you are in the highest tier automatically, meaning that 0.10 or above. Copyright 2012, Young, Klein & Associates, LLC Page 17
Interviewer: Oh, so all your penalties are enhanced because you refused or were marked as refused to blow? Paul: Yes, a refusal will result in enhanced penalties. Will You Be Incarcerated If Your Breath Test Results Are Over the Legal Limit? Interviewer: Once you take the test and the police obtain a reading, do they put you in jail overnight, or what happens to you then? Paul: It depends on what they believe is safe for the public. If you can have someone get you a ride, sometimes there's a period where they require a period of sobriety if you can't get a ride. So, they will detain you until they believe that it's safe for the public if you are released. Is Bail Required As a Condition of Release From the Police Station? Interviewer: Will they force you to pay a bail bond to get out of jail, or do they just let you go? Copyright 2012, Young, Klein & Associates, LLC Page 18
Paul: Generally, there's no bail set, because it's a municipal court offense. After You Are Charged With a DWI, When Are Your Court Appearances? Interviewer: So, once someone's been charged and detained and released, now what? What happens? What are the common events, and what are the timelines on them? Paul: They will have an arraignment, an initial arraignment where they will formally enter their plea. It's advisable that everybody enters a plea of not guilty. Then it's scheduled for another court date; it's normally a trial date. On that date a few things can occur. The arraignment is generally a week to two weeks after the date of arrest. And the trial date is, dependent upon the court and the caseload of the court where the individual will have to go, but that will normally occur between a month to two and a half months. Copyright 2012, Young, Klein & Associates, LLC Page 19
What Is Your Attorney s Job Prior to Your Trial Date? Interviewer: Are there any other deadlines approaching in regards to license, or anything else? Paul: No, no other deadlines. Now generally, what may happen between that arraignment and the trial date is nothing. What I mean by that is part of a criminal defense attorney tools in representing the defendant is receiving discovery from the prosecution and that includes laboratory results. If a person's been charged with a DWI, not related to alcohol, but an illegal drug, or a prescription pill, there will be laboratory results, generally from an urinalysis or even a blood test. If it's been alcohol, the defense bar are waiting for the, I would say, multiple documents related to the Alcotest the readings, the certifications, in addition, the affidavit of probable cause from the trooper or officer relating to that incident. Any ancillary Copyright 2012, Young, Klein & Associates, LLC Page 20
documents, if there are witness statements, accident reports, should be included in that discovery. Interviewer: The defense is tying together all of the evidence that you can to help defend your client, right? Paul: Right, and the prosecution are compelled by law to provide that to me. But they sometimes do not have all of that paperwork together, or sometimes they'll send me incomplete discovery. So at that first listing for the trial date, we frequently have to get a continuance because discovery is incomplete. Now, that's still an important day to go to court, because we can talk to the prosecutor about the potential problems in the case. Interviewer: Okay, and I guess also to gauge how defensible the case is, or the prosecutor's opinion of how hard they're going to push, and how strong they think the State's case is, right? Paul: Correct. Absolutely. Copyright 2012, Young, Klein & Associates, LLC Page 21
Why You SHOULD NOT Enter a Guilty Plea at Your Arraignment Interviewer: At the arraignment where you make a plea, I'm sure some people say, but I am guilty; I did drink, and I drove. Maybe I should just throw in the towel and throw myself on the mercy of the court. What do you say to those people about what's wrong with that thinking? Paul: There are opportunities to still take responsibility for your actions, but you should NOT dramatically impact yourself, your family, and your employment by giving up. Interviewer: Okay. Is there a mercy of the court if you plead guilty or no? Paul: There are statutory requirements that they have to impose, and again, there's no plea-bargaining. So, frequently it's coming up with a compelling set of facts and defenses to at a minimum reduce the penalty. And that can be, if someone has a breath test of 0.22, but the breath results are across the board, there are multiple false positives, and major problems in the discovery, the individual can be charged with Copyright 2012, Young, Klein & Associates, LLC Page 22
that first tier, the one between 0.08 and 0.10, and that just saves them immediately four months of a license suspension. Defense Options: Self-Representation, Public Defenders or Private Attorneys Interviewer: If you're arrested for DWI, compare with me the likelihood of you having any results if you try to defend yourself versus a public defender versus a private attorney. Tell me about the pros and cons of these scenarios? Paul: Well, it's significant. The first is if a person wants to defend themselves they can certainly plead guilty, but a prosecutor will not work with them in any way, shape, or form to minimize damages related to the DWI. A public defender has about, probably, a thousand more cases than the average person. They are in a time crunch. They have limited ability to review and extensively investigate the discovery provided by the State of New Jersey and the Prosecutor. And they have to keep their cases moving. Copyright 2012, Young, Klein & Associates, LLC Page 23
I think the interaction with a private attorney creates a one-on-one relationship. I receive my paycheck from my client. I don't receive it from the State of New Jersey, and I certainly don't receive it from the police. So it's imperative for me to advocate for my clients interests. The other side of that is I have more time to devote to my clients' cases. I have more time to find the problems in the prosecution's case and to seek one of two results; one is to beat the case entirely, and the second is to minimize damages so that my client's life is not impacted beyond what it has to be. I can't say that you would get that level of service with a public defender, and certainly not if you are representing yourself. Interviewer: It sounds like the public defender is way overworked. Paul: They are good-hearted people. They are really doing a lot of great work, but they don't have the time. Copyright 2012, Young, Klein & Associates, LLC Page 24
What Will DWI Charges Entail? Interviewer: When someone's arrested for DWI what are they facing? Are they just facing one criminal charge? Are they facing civil, administrative charges? What's the totality of it? First Time Offenders: Possible Jail Term, Loss of License, Fines, Surcharges and Counseling Paul: The totality of the charge is pretty extensive. On a first offense DWI, the first trigger point is what their blood alcohol content was. If his or her blood alcohol level was between 0.08 and 0.10 they are facing a three-month loss of license. They are looking at fines of approximately $1,000. They are looking at jail time of up to 30 days. They are looking at the New Jersey surcharge of $1,000 a year for three years, and they are looking at 12 to 48 hours at the IDRC, which is essentially drug and alcohol training. And that's for someone between 0.08 and 0.10. By the way, IDRC stands for Intoxicated Driver Resource Center. Copyright 2012, Young, Klein & Associates, LLC Page 25
It is important to note: Most of the time, if people have consumed two to three cocktails in a short period of time, there's a good likelihood their blood alcohol level is going to be above a 0.10. In that case, they're looking at a seven-month to one-year loss of license and about $1,000 to $1,500 in fines. It's a New Jersey surcharge of $1,000 a year for three years, a prison term of up to 30 days, and 12 to 48 hours in the IDRC. Obviously, that's a much steeper license suspension. Costs For the Ignition Interlock Device The other issue is if they are above a 0.15, there is a mandatory Interlock ignition device, and they may have to have that for six months to one year upon restoration of their license, and that alone will cost $200 to $250 a month, plus the imposition. They pay for it. Interviewer: The Interlock device is that small Breathalyzer device that you blow into to start your car and to keep it going, right? Paul: Correct. And you have to take it once a month Copyright 2012, Young, Klein & Associates, LLC Page 26
to these facilities. It's a major imposition; and these are the penalties for first-time offenders. Criminal and Administrative Charges Interviewer: So, you talked about criminal charges, fines, fees, and you also talked about license consequences. Are the driver's license charges, or loss of license, is that part of the criminal process, or is it something else? Paul: It's part of the criminal process. It's managed by the Department of Motor Vehicles, but it is part of the conviction. Interviewer: So, you have to fight on multiple fronts. When you're charged with DWI you have to fight to try to maintain your license if you can, you have to try to stay out of jail, and you have to try to fight the charges themselves. Paul: Correct. And there are frequently companion tickets associated with a DWI. Typically there's a reckless driving, careless driving, speeding. The police may add on other tickets as well. Copyright 2012, Young, Klein & Associates, LLC Page 27
Being Charged With a DWI: When Will Your License Be Suspended? Interviewer: What happens to your license at the point of arrest? Do they take it from you? What do they do? Paul: No, since you are not convicted of a crime you're still afforded the opportunity and your driving privileges in New Jersey are not suspended. Interviewer: You mentioned the license suspension is handled through the Dept. of Motor Vehicles. So do you have to go and speak before the motor vehicle bureau on the case, or is it just all handled through the court? Paul: Well, you surrender your license, if convicted, and you have a license suspension. You will surrender your license to the court on that day. And then, to restore your license you'll be working with the Department of Motor Vehicles. Copyright 2012, Young, Klein & Associates, LLC Page 28
Interviewer: Do you typically have to get involved in helping people restore their licenses? Paul: Generally not, unless there is an administrative error that we can clear up by providing paperwork from the court. Commercial Driver s and a DWI Charge Interviewer: Don't we generally have laws for people that have a blood alcohol level below 0.08? Paul: They do. It's dependent upon normally if they have a commercial driver's license and they are subject to a lower legal limit. Interviewer: And for CDL holders, they can face loss of their CDL license basically, right. Paul: Correct. I think that 0.04 is the level for someone with a CDL, which is frustrating, because I was able to resolve a case, but my client had a 0.08. He was driving home from a golf course, just visiting with his buddies, a retired gentleman, but he drives a school bus, and he had a CDL. Copyright 2012, Young, Klein & Associates, LLC Page 29
What I was able to do was get him just a reckless driving with a 20-day loss of license that he could serve over the summer. It was nice. I think if it was just a straight DUI I would have been able to crush it out of the park, but since he had the CDL the case is viewed differently by the courts He was tremendously happy with the outcome. A DWI Charge: Reasons Why You Should Consider Retaining a Defense Attorney Interviewer: Okay. I know you can't give me exact figures, but how often would say you can improve someone's situation, at least a little bit if they hire you versus going at it on their own and pleading guilty? Paul: I know if there's no way out of the DWI, I can save them hundreds of dollars in fines, and thousands of dollars with insurance points by getting the companion tickets dismissed. Copyright 2012, Young, Klein & Associates, LLC Page 30
I also know that if someone tested with a BAC above a 0.15 that there's a good likelihood that I can get him or her below the 0.15 where they still may have a seven-month loss of license, but I can save them the Interlock ignition requirement. Interviewer: Is it pretty safe to say that someone hiring you, you pay for yourself, at least, right, in savings from some kind of fees, or fines? Paul: I've certainly argued that. I've absolutely, certainly argued that, and at the end of the day it's insurance that, if we find enough to hang our hat on, that we can beat it. And given the dramatic impact that these first offense DUIs have, it's money well spent. Interviewer: There's such low risk because there's no penalty for arguing the case and going to trial, right? Will you be penalized by the courts? Paul: No, there's no penalty at all, because there's no plea-bargaining. It's different than so many other states in that sense. That's why I love it, because we can try these cases, we can file motions, motions to suppress particular evidence, motions to compel Copyright 2012, Young, Klein & Associates, LLC Page 31
discovery, probable cause motions where we don't think that the officer had any right to pull the person over. So, an aggressive defense can pay off. Now, if you just go to a lawyer who's not an expert and not aggressive in DWI defense, it may not pay off for you because he or she may just pleads you out, takes your money, and you will be burdened with the seven month loss of license. What to Look For When Retaining An Attorney Interviewer: Let's get into that for a moment. I'm sure some people will shop lawyers when they're facing DUI charges. So, what are the good and the bad signs you look for when you are considering hiring an attorney? What should tell people that's not someone I should go with, or oh, this is a good sign? Paul: My client reviews on an Avvo are great. It shows compassion. It shows aggressiveness, and it shows that I'm results oriented. I think the other part is experience. The prosecutors know me, and the prosecutors respect me, and the judges know and respect me. So, if there's something on the edge, I would suggest that my relationship with the Copyright 2012, Young, Klein & Associates, LLC Page 32
prosecutor, and knowing that we will go to trial, gives my clients a better outcome in the end. The last thing a prosecutor wants at the end of the day is to have many hours in trial with Paul Lang for something that we could have resolved outside of court, and he moves on with his massive caseload. But he won't do that to some attorney who doesn't handle many of these, this person who is posturing and won't ever pull the trigger on a trial. You prepare for war to make peace. Interviewer: So, it sounds like some good questions to ask the attorneys you interview are, are you willing to take cases to trial if need be, and have you been to trial? Do you do more than just help people file a plea? Do you focus on DWI defense? Paul: I leave that decision up to my client. I will tell them what my advice would be. Sometimes it is, I believe that a trial is appropriate in their case. You can lose at trials, and I will tell them what I think would be my confidence level in that. Sometimes clients don't have the stomach for a testy trial, and that's fine. Some clients are ready to sharpen the knives and go forward because they know we have a Copyright 2012, Young, Klein & Associates, LLC Page 33
principled argument based on case law, based on a strong defense, and we're ready to go. How Long Do DWI Cases Take to Resolve? Interviewer: How long on an average do DWI cases take? Paul: I would say, and the one thing I tell a lot of clients is a lawyer will slow the process. It certainly can never be sped up. And generally, it will require about, at a minimum, two to three court appearances, sometimes more if there are motions, and if there is a trial. Interviewer: Does it normally take three months to a year? What's the range it could take? Paul: I'd say, three to seven months. Interviewer: I imagine, making the process take longer might be better because if you're facing the loss of your driver's license, pushing it out as far into the future as possible will help you make accommodations and get you in a position where you're more prepared? Copyright 2012, Young, Klein & Associates, LLC Page 34
Paul: Absolutely, and it affords my clients the opportunity to manage their life, and make accommodations for the potential penalties they face. DWI Is an Equal Opportunity Charge Interviewer: What kind of people do you get as clients? Are they typically of a certain age, gender, or employment status, or are they across the board? Paul: DWI is an equal opportunity charge, and I've represented clients, I would say confidently, of every race, color, creed, and socio-economic background. I've represented deans of colleges, executives of the Fortune 500 companies, those who are unemployed, those who work blue-collar jobs, friends, family. I've represented pretty much everybody. Interviewer: So, it does not seem as if any particular type of person who commits this crime. It's kind of unintentionally committed by the entire spectrum of Copyright 2012, Young, Klein & Associates, LLC Page 35