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In this article, you will discover:
First, police officers look for a traffic violation, such as crossing the yellow line, speeding, or an equipment violation. Any traffic or equipment violation provides them with a reason to pull you over.
After you’re stopped, the police will engage you through some form of personal contact. They’re looking to see:
The police will ask you if you’ve been drinking. If you say yes, that provides them with “reasonable suspicion,” the legal basis for asking you to step out of the car.
Once you’re out of the car, the police will continue to observe how you smell, stand, walk, and talk. They’ll probably ask you to perform balance tests, which are a part of standardized field sobriety tests. Another common sobriety test is the “horizontal gaze nystagmus test,” which involves following a pen or finger moved horizontally in front of you with your eyes to detect involuntary jerking.
The most problematic balance tests are the walk-and-turn, where you’re asked to walk heel-to-toe, and the One-Leg Stand (OLS) test. Under any circumstances, these are abnormal, unusual ways of standing and walking.
Very few people can perform balance tests perfectly, and almost everyone shows some degree of impairment. While the police presume you’re impaired due to drugs or alcohol, often the impairment is due to nervousness, tiredness, distraction, an old injury, or clumsiness.
The purpose of these balance tests is to provide the officer with justification, or “probable cause,” to continue their investigation by arresting you and bringing you in for a breath test. Probable cause is determined in the following manner: based on information available to the officer at the time, did they have a reasonable basis on which to continue their investigation?
There may be many reasons why you can’t perform balance tests. However, if one of them could reasonably be that you drank or took drugs, that’s probable cause. That’s what police officers consider when they decide to arrest.
Sometimes the location of the keys doesn’t matter, but it should. Merely getting into your car or being seated in it isn’t enough to establish the element of operation. There must be some indication that you had control of the car and that you intended to move it.
Maybe you had the keys in the ignition because it was a cold night. One of the leading New Jersey cases on this issue, State v. Daly, involved a man who left a bar at 2 a.m., decided to sleep in his truck, and turned the ignition on to start the heat.
Ultimately, the police came and charged him with DWI. Although he was convicted, he took his case all the way to the State Supreme Court, where it was ruled that merely sitting in the car with the engine running is not enough for a DWI conviction. You must have the intent to operate.
The car doesn’t necessarily have to be running to establish that intent to operate. There have been cases where pushing a car was considered operating it.
Other intent-to-operate cases involve a driver asleep in a car pulled over on a limited-access highway or on the shoulder of a road. Even though the car wasn’t running and the driver was sleeping, the intent to operate was established. The court inferred that the only way the driver could reach a limited-access highway was by driving there.
Sleeping on the side of the road is different from sleeping in the parking lot of a bar, shopping center, or liquor store. However, operation can be proved whether the engine was running or not, depending on the circumstances.
If it’s a typical stop where the police see you driving and pull you over for a traffic or equipment violation, that’s the end of the inquiry as far as operation is concerned. However, there are those oddball cases where admissions count as evidence.
For instance, sometimes the police receive a tip. In these cases, someone who’s been drinking drives home. Soon after, the police show up, knock on their door, and start asking questions. If the driver is foolish enough to answer those questions, they can talk themselves into a DWI ticket.
I’ve had many cases where an officer knocks on the door of a driver’s home and has the following exchange:
“Is that your car in the driveway?”
“Yes.”
“Were you driving the car?”
“Yes.”
“When did you get home?”
“About 5 minutes ago.”
“Have you had anything to drink since you got home?”
“No, I haven’t had anything to drink.”
Those admissions effectively establish operation and eliminate any viable intervening consumption defense.
In this kind of situation, it comes down to asserting your constitutional rights: your Fifth Amendment right to remain silent and your Sixth Amendment right to consult with an attorney. That’s your mantra when you’re the target of a police investigation: remain silent and invoke your right to counsel.
An attorney looks for holes in the police reports and for a lack of proof. Hopefully, the client was smart enough not to answer questions or was in a circumstance where they pulled over, went to sleep, and drank after they pulled over.
Regarding open container charges, if a police officer sees a partially consumed alcoholic beverage in your car, such as a not-quite-empty bottle of alcohol, the inference is that you were drinking while you were driving. That’s illegal. However, if you were parked, another inference could be that you drank after parking.
There are ways to attack the charge, but it all depends on the circumstances of the individual case.
Whether you’re parked or driving doesn’t matter. The element law enforcement must prove is the operation of the vehicle, whether they stopped you in the act of driving, or they’ve generated enough proof to establish the element of operation if you’re parked. That’s enough to get you convicted, assuming they can link your intoxication to the time of driving.
Sometimes there’s a break in the action. Suppose your car ran off into a ditch in the countryside. Nobody knows how long you were there, but you were drunk when the police arrived.
Here are the relevant questions regarding the element of operation:
State v. DiFrancisco had this exact fact pattern. Ultimately, the Appellate Court in the Law Division ruled that the defendant was not guilty, because the state couldn’t establish a relationship in time between the driver’s drunkenness and when he drove the truck into the ditch.
This ruling is another example where everything comes down to each case’s circumstances and facts.
We have one case that we just argued in the Appellate Division. That was a case based on an unusual defense, one of necessity.
Our client was having dinner with his girlfriend. They argued, and she became aggressive. She started physically assaulting him.
The defendant fled in his car. The girlfriend followed. They played “bumper cars” along the way. He ultimately found a more secluded location, from which he called 911.
By the time the police arrived, the girlfriend was gone, and our client told them everything that had happened. He also obtained a temporary restraining order under the Prevention of Domestic Violence Act.
At that point, the police informed our client that because they thought he’d been drinking, they wanted to put him through a series of balance tests. He became irate, refused the tests, and repeatedly asked for a lawyer. He was then arrested. They asked him to provide a breath sample, but he refused again.
We went to trial, and we lost. However, we’re up on appeal because our defense was that our client had no choice but to drive, whether he was drunk or not, just to get away from that woman. The decision is now in the hands of the Appellate Division.
There is a previously reported Appellate Division case, State v. Romano, with similar facts, except that the parties were not boyfriend and girlfriend. That case involved a man fleeing people who assaulted him in an effort to collect a debt. He was injured, fled, and was then stopped by the police. He, too, was convicted at trial and appealed the ruling.
Ultimately, the Appellate Division threw the conviction out. The court reasoned that even though no one wants drunk drivers on the road, there are unusual circumstances where the need to save your life or avoid injury is paramount to obeying the DWI laws. That’s the basis of the necessity defense.
While those are unusual circumstances, they do come up occasionally. Unfortunately, sometimes you have to take the matter up to the appellate courts before justice is done.
For more information on the consequences of having keys in the ignition during a New Jersey DWI, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 226-1146 today.