Interviewer: What are their reasons they’re saying they pulled someone over most commonly and you’re finding that that’s either not a true or it’s not a valid reason?
Tom Chaves: The best way of defending it is if the mobile video recording device or camera in the police car actually shows the whole transaction from when they started trying to stop the vehicle to the point when they do stop the vehicle. And let’s say for example they’re claiming that the person failed to maintain lanes, a lot of times, what that will just involve somebody switching lanes or changing lanes, which is completely legal.
Changing Lanes is the Most Frequently Cited Traffic Infraction in New Jersey
Interviewer: Any specifics they call out to you that you’re seeing more often in that or it just could be anything?
Tom Chaves: They will come up with some kind of a motor vehicle infraction again, and the ones that I’ve mentioned, changing lanes I would say is probably the one that’s most frequently used, which is a pretext for them stopping the vehicle, as there is an improper lane change or some kind or other when in fact there was no improper lane change.
Commonly Challenged Discrepancies in the Alcohol Test to Determine BAC
Interviewer: What can go wrong with the alcohol test that you’ve found where the experts have found challenges to it?
Tom Chaves: They can find that for example the 20 minutes waiting time before the test is given wasn’t inhered to and they can find that the electronic equipment meaning cell phones or anything else, that is electronic in the waiting area where the person has to wait 20 minutes before being given the test, was not done correctly, where the person has to be continuously observed for the 20 minute time period and they have to make sure that there’s nothing in the person’s mouth, that can also be a factor. They can also find that if the person burps, within the 20 minutes period and it has to start again. Those are the type of things that will be seen as a way of challenging the breathalyzer reading. The readings may not be within tolerable limits as a person must give two breath samples into the tube connected to the machine and their readings must be within what the court has determined to be tolerable limits.
There is No Plea Bargaining Allowed in DWI Cases in New Jersey
There is no plea bargaining allowed in DWI cases. So, for example, I had clients who come to me and say “Well, I’ll be willing to plead guilty to reckless driving”, what some people have called a wet reckless, “but I won’t plead guilty to DWI”, well first of all, there’s no such thing as wet reckless and secondly, they’re not allowed to plea bargain so you can’t change DWI into something different.
The Only Deal Available in a DWI Case is the Dismissal of All Other Charges
Interviewer: When you’re saying you tried to work a deal on the case that doesn’t have good defenses or any, what is the deal, what does that mean?
Tom Chaves: Well, the only deal that you can really make under the circumstances is a dismissal of all the other charges because typically when someone has a DWI, they get multiple motor vehicle citations, so it’s not limited to just the DWI ticket. For example, they will typically give the person, at minimum, a careless driving ticket and often it’s a reckless driving ticket that goes along with it, so for example you can get that dismissed as part of a plea bargain or there’s another charge which is a DWI in a school zone; school zone means within the 1,000 feet of a school, and you can get the prosecutor to agree to dismiss the 1,000 feet of a school.
In a Case with No Viable Defenses, it is Best to Pursue Dismissal of Additional Charges
So, I had a case in which the person actually drove into a tree that was in front of the school. And in that case, there were really no viable defenses and I was able to have the prosecutor dismissed all the other motor vehicle tickets that were involved including reckless driving and including driving within a school zone, DWI within a school zone and so forth. So, that’s really the best you can do.
Getting the BAC Reading Thrown Out Can Still Result in a DWI Conviction Based on Observations of the Police
So, I mean in those type of cases, even if you’re able to throw out the blood alcohol reading from the breathalyzer, it doesn’t mean the case gets dismissed because the person can still be found guilty based on observations. So, I mean that’s that sort of a misconception that the public has or some people have that the only way that a person can be found guilty of a DWI case is if their blood alcohol reading is above the legal limit. That generally is true and it’s a per se violation if the person is above the legal limit.
A Drug Related DWI Charge is Proven Without a BAC Reading in Court
Most people think of alcohol when they think of DWI but a person who takes an illegal drug which impairs their ability to drive can be found guilty of driving under the influence. This type of case is usually proven through the observations of the arresting police officer. A urine sample may also be taken and tested for drugs. Even if illegal substances are found in the urine sample the State must still prove that the drugs impaired the person’s ability to drive. Police often use a drug recognition expert to testify about the common effects of certain drugs. The drug recognition expert is an officer who has received specialized training.