Kuchinsky & Rotunno, P.C.

"Only a couple of drinks", often said but why?  

We hear that alot in our criminal defense and dui / dwi defense practice.  It is hard to imagine a more intimidating situation than a 1 am traffic stop, cop car lights blazing and blinding you, and officer standing outside your drivers window with a flashlight in your eyes  and the question "Have you had anything to drink tonight?" being posed.  The answer is usually "only a couple of drinks".  That is a question that does not need to be answered as you have a right to avoid self incrimination.  If the officer has probable cause to believe that you were drinking, he already smells it on your breath-why admit what is readily apparent to the officer's nose?

New Jersey law only requires that you submit a breath sample once detained for suspicion of driving under the influence.  There is no requirement that you perform any roadside sobriety physical tests or even take the portable breath test on the roadside.  Both the physical test and the portable breath test are used against you should you subsequently be charged with DWI or dui.  You are free to refuse to take those tests, however you can expect that you will be taken to the local police station for a chemical breath test.  That test you cannot refuse or else you can be charged with an additional offense for your refusal to take the test.  In fact, evidence of your refusal to take the test can be used to infer that your refusal was because you knew you would fail the breath test!  On the issue of taking the breath test many clients are confused because the law does not give you the right to ask to speak to an attorney about taking the test.  The confusion comes because the officers will read a warning that you have a right to remain silent and speak to or have an attorney present during questioning.  Clients often confuse that right to counsel at interrogation with their obligation to give a breath sample without the right to have counsel consulted or present.

The successful defense of a DWI or dui case is much less complex if the only evidence the officer has is a breath test.  The additional evidence of amount to drink, where, when, portable breath test and roadside sobriety tests often work to your detriment if the breath test can be excluded from evidence.

Two last points on the dwi / dui testing-  If you have the misfortune of getting a summons for this offense, get to a hospital immediately upon your release for an independent test of your Blood Alcohol level.  If there is a wide disparity between that result and the breath test of the officer reasonable doubt may enter the picture.  Finally- you do not have to consent to a blood test if the officer should offer one to you if you are taken to the hospital.  The officer will need to obtain a warrant for the blood test of your alcohol level, so make sure that the officer contacts a judge to receive permission to get that sample for analysis.