What Important Details Or Information Should I Share With My DWI Defense Attorney?
Sharing information with your attorney begins at the first meeting. All charges need to be identified. Was there a breath test or blood test? What was the blood alcohol content [“BAC”] level? Are there any prior convictions for DWI, breath test refusal, revoked or suspended driving, and other significant traffic offenses? How well do you get along with the officer?
After these basics, we get into the nitty gritty of what happened and how it happened. I advise my clients of the attorney client privilege and recommend that they not talk to anyone outside of privileged relationships (spouse, priest, psychiatrist, counselor) concerning the events. Certainly, NOTHING should be posted on social media. I and members of my firm may share non-privileged information such as court appearances and police reports with people the client designates. We are not as concerned about keeping police reports confidential from other people because those include statements of the police and third parties, not of the client. As long as we have the client’s approval, we can share those with whoever the client designates.
What Are Some Possible Defense Strategies in DWI Cases? Is It Possible to Win a DWI Case in New Jersey?
In New Jersey, we have a plea-bargaining prohibition. However, we are pretty successful in many cases at persuading prosecutors to find the merits of a defense and exercise their authority to unilaterally amend or dismiss a DWI. Other times, we’ll go to trial.
There are two aspects to most DWI cases. There is the observation-based case where a prosecutor will try to persuade the court that the defendant was under the influence of alcohol or some other substance based on how the person smelled, the way their eyes looked, the way their hands moved, the things they said, and how they performed on field sobriety tests. The other aspect of these cases deals with the admissibility of breath or blood test results. There are certain technical legal requirements which lawyers call foundation that the prosecutor needs to establish at trial to assure the court that those results are, in fact, reliable.
What surprises me when we go to trial is how often prosecutors make errors, even in cases where the foundation appears to be solid. At trial or on appeal, I often get the breath test or blood test excluded. So, it often pays to try a case.
I Refused the Breath Test After My DWI Arrest in New Jersey. How Can I Be Charged with DWI When There Is No Record of How Much I Had to Drink?
For police to issue a DWI charge in New Jersey, all they need to do is establish reasonable suspicion. To justify an arrest, they need a little more–probable cause. Probable cause means that the officer at the time had enough evidence on which to reasonably continue the investigation. Ultimately though, it’s up to the judge whether the state can prove a defendant guilty of DWI beyond a reasonable doubt. One of the problems with a breath test refusal charge is that a prosecutor can infer that the person refused because they had a consciousness of guilt. Of course, that’s only one inference that may be drawn. Sometimes, the person will ask for an attorney and assert their constitutional rights. Another reasonable inference would be that they refused because they had a mistaken belief that they had a right to decline the breath test.
Refusal cases tend to be very difficult to beat because the elements the state must prove are a lot easier to establish than for DWI. To make a DWI arrest, police must establish probable cause and that the arrest was in fact for a DWI. Those two elements usually go hand in hand. The state must also prove that the officer advised the person of their rights and obligations about submitting breath samples. They do that by having the officer testify that they read a document called a standard statement. The final element that the state must prove is that the person said anything other than, “Yes” or its equivalent. Asserting your right to speak to an attorney, remaining silent, or giving ambiguous responses can all be interpreted as a refusal and support a conviction.
I Was Not Told I Could Refuse to Submit Breath Samples after My DWI Arrest. Can the Officer’s Failure to Advise Me Be Used as a Defense?
If it is established that you were not properly advised of your rights after your DWI arrest, it would undermine one of the elements of the breath test refusal charge–i.e., that the officer properly advised you of your rights and obligations with regard to breath testing. Without this proof that the officer gave proper advice, you will not be found guilty.
I Was Not Given the Right to Consult with an Attorney Before Submitting a Breath Sample. Can I Get My DWI Case Thrown Out?
If the right to an attorney is denied before taking a breath test, that doesn’t mean the case can be thrown out. New Jersey does not recognize a right to consult with an attorney prior to submitting breath samples. Sometimes people confuse their right to remain silent under the Fifth Amendment of the United States Constitution when it comes to submitting breath samples. That constitutional provision applies to testimonial evidence–words given in response to questions designed to elicit information. Also, the Fifth Amendment does not apply to providing physical evidence such as a breath sample. Therefore, if police do not honor a request to consult with an attorney while they’re requesting a breath sample, that would not be a defense unless you can persuade the court that you had an honest misunderstanding. This is a difficult defense because most judges find it easier to side with the state and their theory that there was no such misunderstand rather than that the person was confused about the application of their constitutional rights. Also, the state will often argue that the refusal demonstrates the defendant’s consciousness of guilt. To my knowledge, this so-called “confusion” defense has only worked on extremely rare occasions.
For more information on Sharing Information with DWI Defense Attorney, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 218-9090 today.
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