New Jersey DWI Attorney John Menzel

Preparing Your Defense At A DWI Stop In New Jersey


I always tell clients that the best time to prepare a defense is at the scene when they are pulled over. I mentioned earlier that one of the significant problems we have is that most people are ignorant of their constitutional rights. People have a right to remain silent at all times. They also have a right to consult with an attorney at all times. Police don’t have to advise a person of those rights unless that person is arrested and the officer intends to question them after the arrest. At that point, if the officer fails to advise a person of their rights, the sanction is to exclude any answers that that person gave. However, it doesn’t invalidate the arrest or lead to a dismissal of the charge. People should know these rights, regardless whatever the advice comes from the police officers.

I’ll tell you a story about my daughter. She was at a party with her boyfriend. While driving home, she saw a California highway patrol officer turn on his overhead lights and signal her to pull over. Once she pulled over, she retrieved her license, registration and insurance card from her visor. I told her that was the easiest place from which to retrieve it. She rolled the window down and waited for the officer to approach and request those credentials. She also took it upon herself to tap her iPhone and record her interaction with the officer, but as I’ve discovered, that can be risky, depending on what state you’re in. New Jersey is a one-party consent state, which means that if one party to a conversation consents to a recording, then it’s lawful. However, California, for example, is a two-party consent state, which means, putting aside constitutional challenges, recording the conversation without the officer’s consent may violate the wiretap law in California.

The officer then came up to the window and, before he could even finish requesting her credentials, she had them ready for him to take. Because of this, we know that the officer could not say that she had slow fumbling hand movements unless he was a liar. The officer then said, “Ma’am, I’d like to ask you some questions.” My daughter responded, “Officer, you can ask all the questions you want, but I am not answering any.” The officer then told her that she had to, and my daughter responded, saying, “I don’t think so. May I call my attorney?” The officer said, “Oh, like you have them on speed dial?” She said, “Yes, I do, officer.”

At that point, the officer ordered her out of the car, told her to stand at a certain spot on the road, and gave her instructions for a balance test. When he finished those instructions, my daughter said to the officer, “Sir, on the advice of my attorney, I am not doing any balance tests.” The officer didn’t know what to do. As a result, he started talking until my daughter found an opening in the conversation and said, “Sir, if you are going to arrest me, I want to call my lawyer. But if you’re not, I’d like to go home.” The officer let her go home.

The reason he let her go home was because, other than however she was driving, she gave him very little, if any, additional information on which to either justify an arrest or use in a DWI prosecution. She didn’t provide any observational evidence by doing balance tests or by way of she retrieved her credentials. She gave no verbal evidence by way of admissions because all she said was enough to invoke her rights to silence and an attorney. She didn’t tell the officer that she pays his salary by paying her taxes. She didn’t tell him that he is a public servant and should get her a cup of coffee. She didn’t say, “I know my rights,” or “I have a lawyer, it’s my father.” Instead, she kept all communication to a minimum. As a result, the officer decided that he was not going to pursue the stop by arresting her and getting a breath sample.

If she had been arrested and asked to submit a breath sample, she would have given one, because that is the only test that the law requires a person to submit to without a warrant or a court order. However, there is no obligation to answer questions, give a blood sample, or give a urine sample unless there is a warrant or a court order.

Invoking your right to silence and an attorney is very difficult to implement because it’s counterintuitive. It just won’t feel right at the time, because officers will generally react pretty negatively when you invoke your rights. They’re reacting that way for two reasons.

First, you are violating their expectations. Police officers are used to people being ignorant of their rights and playing right into the State’s hands by answering questions and consenting to balance tests. When a person refuses to answer questions or perform the balance tests, it throws officers off balance. It is something that they are not accustomed to and, oftentimes, they become defensive.

Second, you are frustrating their purpose. They are not asking you to answer the questions or do balance tests to help you out, but rather to justify arresting you and to generate enough evidence with which to convict you. By violating their expectations and frustrating their purpose, you’ll get a very negative reaction. It is important to understand that the officers are not reacting negatively because you are being dishonest or uncooperative, but simply because you are respecting your constitutional rights and acting accordingly. Invoking your right to silence and an attorney may make an officer suspicious, but that suspicion is inadmissible in court because they are your constitutional rights and those rights are, therefore, protected. This is business; it’s not a popularity contest.

As long as you don’t actively resist the officer, and as long as you remain calm and polite, this advice will serve you well. It may not prevent an arrest, but it will certainly level the playing field in court when it comes time for trial, and it will likely lead to a better outcome than if you had committed the errors most people commit by answering questions and doing balance tests.

For more information on Preparing Defense At A DWI Stop, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 899-1899 today.

John Menzel, J.D.

Learn your options - call me for your free, 20 min phone consultation (732) 899-1899

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