New Jersey DWI -- Preparing For Trial
When and How to Plead:
First, Plead Not Guilty. At arraignment,
your plea should almost always be NOT GUILTY. The judge
will also ask if you want to hire a lawyer and, if so, whether
you can afford one. Indigent defendants can obtain a Form
5A: Application for Public Defendant to apply for legal
representation. Most municipal courts have these forms available
on request. If you use one, try to keep a copy for your
records.
Hire a Lawyer.
Once retained, your lawyer and you should
consider changing the not guilty plea only after reviewing
discovery -- i.e., documents
and other information received from the State before
trial. After this review, decide to:
- Plead NOT GUILTY if sentence on a guilty
plea will be about the same as the sentence on a guilty
finding after trial or if you are prepared to accept the
maximum sentence if you lose.
- Plead GUILTY if serious aggravating factors
exist and you have real risk of imprisonment or other
unacceptable consequence that can be avoided with a guilty
plea.
What the State Must Prove to Convict You
Prerequisites. Almost all
drunk driving charges arise from arrests which are considered
warrantless seizures. Seizures made without an arrest warrant
are presumed to be unreasonable. Thus, the State must establish
that the officer had probable cause to (a) stop you, and
(b) arrest you for drunk driving. Probable cause is a reasonable
basis to act, usually involving a suspicion that you violated
the law. The State must establish probable cause by a preponderance
of the evidence.
Elements of Drunk Driving.
Once these prerequisites are established, the court can
consider the elements of the offense. To convict you of
drunk driving, the State must prove beyond a reasonable
doubt that you:
- operated or intended to operate
- an operable motor vehicle
- while either
- under the influence of liquor or
- with an alcohol concentration of 0.10
per cent by weight of alcohol in your blood or breath.
Defenses to Drunk Driving.
Defenses to drunk driving charges focus on the elements.
If the State fails to establish the elements or if you present
evidence that gives rise to a reasonable doubt about the
elements, you can win and the court will find you not guilty.
Elements of Breath Test Refusal.
Breath test refusal is a separate offense for which the
court imposes separate punishments in addition to those
for drunk driving. To convict you of breath test refusal,
the State must prove by a preponderance of the evidence
(i.e., more likely than not) that the arresting officer:
- had probable cause to believe that you
were driving or in actual physical control of a motor
vehicle on the public highways or quasi-public areas of
this state while under the influence of intoxicating liquor
or a narcotic, hallucinogenic, or habit-producing drug
or marijuana
- arrested you for drunk driving.
- asked you to submit to a breath test
- received an answer that was either negative
or conditional
Defenses to Breath Test Refusal. Affirmative
defenses are defenses that require you to prove that something
prevented you from submitting breath samples. New Jersey
law recognizes few such defenses to breath test refusal.
Affirmative defenses include (a) confusion about your legal
obligation to submit a breath sample (not confusion caused
by intoxication) arising from your misimpression of those
rights or incorrect advice from the police officer, and
(b) a physical inability to give sufficient breath samples
due to certain medical conditions like trauma, emphysema,
or asthma.
What the State Must Prove to Show Breathalyzer
Reliability
Breath Tests. Breath testing
is by far the most common way of testing for blood alcohol
content ["BAC"]. The Breathalyzer is by far the
most commonly used machine to test breath in New Jersey.
Before the court can hear what breath test results are,
the State must establish certain things:
- The machine was working properly.
- The officer who operated the machine
was certified by the Attorney General to use it.
- Radio frequency interference did not
affect the machine.
- The test was given correctly.
- Chemicals in glass ampoules used in the
test were of the proper amount and mix.
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