New Jersey DWI – DUI Lawyer Edward Janzekovich – DUI – DWI Checkpoints

February 23, 2016 by

In general, police officers in New Jersey can only stop a vehicle if they have a reasonable suspicion that an offense has been committed. They must also be able to specifically describe the grounds for their suspicion. Despite this constitutional protection against unreasonable searches and seizures, police may randomly stop drivers at sobriety checkpoints (also called roadblocks) even if they have no reason to believe that anyone in the vehicle committed an offense. Because random checkpoint stops are such an intrusive law enforcement technique, the police must be able to show a rational basis for establishing the roadblock. There are strict requirements for both setting up and executing roadblocks.

What To Expect At A Sobriety Checkpoint

As you approach a road block, you should see signs and lighting designating the checkpoint area. You will be required to slow down and wait for your turn to be processed through the checkpoint. Police officers will detain drivers in a pre-selected pattern (for example, every driver or every fifth driver). Drivers cannot be stopped on their appearance alone.

If you are stopped, you will be detained for a brief period of time. Police may ask basic questions, request documentation and look for signs that you are under the influence of drugs or alcohol. If you exhibit these signs, you will be asked to move your car to a separate area where you will be asked to undergo a field sobriety test.

Roadblock Requirements

The Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures. This means that if police do not follow the proper procedures for setting up and executing a roadblock, any evidence obtained may be inadmissible in court—including breathalyzer or blood test results. Courts will consider various factors in determining whether a roadblock was proper, including:

  • Whether notice of the time, date and location of the roadblock was published in advance
  • Whether advance warning was given to individual approaching motorists (use of lights, signs, etc.)
  • Whether statistical data demonstrates that the roadblock was set up in a particularly problematic location for drinking and driving
  • Whether public safety and awareness are fostered by the checkpoint
  • The time of day when the roadblock is conducted
  • Average length each motorist is detained
  • Whether less intrusive measures could have been used to combat drunk driving in the area

Police officers and state troopers do not have the authority to select a DUI checkpoint location or time. They must first receive a directive from their commanding officer.

What Happens if I Attempt to Evade a Roadblock?

If you are intoxicated and attempt to evade a properly established road block, this may give police sufficient reasonable suspicion to stop your vehicle.

New Jersey DUI Lawyer Edward M. Janzekovich Represents Drivers Who Have Been Charged With DWI at Police Roadblocks

State and federal laws carefully protect the rights of citizens to be free from unlawful searches and seizures. If you were stopped at a sobriety checkpoint and arrested for driving under the influence, New Jersey DWI lawyer Edward M. Janzekovich will obtain all documents relating to the establishment of the road block, and analyze it to determine whether it was legal. I will also look at the circumstances surrounding your stop to determine whether police followed proper procedures and detained you for a reasonable amount of time. Unreasonable detentions raise different constitutional issues and may provide you with additional defenses.

We proudly serve clients in Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County. To discuss your case, call us at 732-257-1137 or contact us online today.

Filed Under: Drunk Driving, DWI - DUI, DWI & DUI Checkpoints, Field Sobriety Tests, Illegal Searches and Seizures, New Jersey Attorney, New Jersey Search Without Warrant Tagged With: , , , , , , , , , , , , , , , , , , , ,

Field Sobriety Tests in New Jersey

February 16, 2016 by

New Jersey DWI – DUI Lawyer Edward M. Janzekovich

Field Sobriety Test Attorney in New Jersey

When you think of getting pulled over for suspected drunk driving, you might think of police administering a breathalyzer test to determine whether you are intoxicated. Or you might think of the more “old school” field sobriety tests depicted in so many movies, where police ask a driver to walk in a straight line, follow a flashlight with their eyes, or count while standing on one foot.

In New Jersey, law enforcement officers are supposed to conduct both types of testing. A field sobriety test is often given first at the side of the road, so police can build probable cause to conduct a breathalyzer test later at the police station or take you to the hospital for a blood test. Another reason police have you perform field sobriety tests is because it is used to serve as “backup” evidence in case the breathalyzer results are later found to be inadmissible. However, the results of field sobriety tests are also often inadmissible, because so many factors can invalidate results.

The National Highway Traffic Safety Administration (NHTSA) has developed three specific tests that, if performed properly, are considered reliable evidence of intoxication, but only two of them can be admitted as proof of intoxication in New Jersey:

The Horizontal Gaze Nystagmus (HGN) Test

In performing this test, officers will ask the driver to follow a small object, usually a flashlight or pen, with their eyes. In order for results to be accurate, the object must be held 12-15 inches away from the face and just above the eyes. Not all individuals are appropriate candidates for this test. An officer should check for equal pupil size and other indications that the driver may have a medical disorder, head injury or visual impairment, in which case the test should not be administered. In New Jersey, this test is not considered scientifically reliable and it cannot be admitted as proof of intoxication at trial.

The Walk and Turn

This test involves walking a straight line, heel to toe. Signs of impairment include not keeping balance while instructions are being given, starting before the officer instructs you to, stopping while walking, missing the heel to toe step, stepping off the line, using arms to balance, turning improperly or taking the wrong number of steps. Certain factors create good reasons for challenging the results of this test—for example if a person has balancing problems, is overweight, elderly, wearing high heels, has a knee injury, or if the test is conducted in a bad area such as poor lighting, garbage in the road, or an uneven road surface.

The One-Leg Stand

Officers will require a driver to stand with his or her arms down, and lift one foot six inches off the ground with pointed toes, looking down at the raised foot while counting out loud (one thousand and one, one thousand and two, one thousand and three, etc.) for thirty seconds. Signs of impairment include swaying, use of arms to balance, hopping or putting down a foot. Again, many people are not good candidates for this test. Advanced age, health conditions, inappropriate footwear or terrain all call the reliability of this test into question.

There is no statutory penalty for refusing to perform a field sobriety test, however if you do refuse, a judge is allowed to treat your refusal to do them as if you were too drunk to do them, so make sure you do the tests if asked.

On paper, these field sobriety tests seem simple enough. But are they? It’s late at night, you are tired, police cars are flashing lights, you are surrounded by police with flashlights pointed at you. It quickly becomes a very intimidating experience as you are wondering to yourself if you are going to lose your license and go to jail. This is exactly why if you find yourself in this situation, you need to contact us immediately.

Top New Jersey DWI Lawyer Edward M. Janzekovich Defends Against Invalid Field Sobriety Test Results

Hiring the right New Jersey drunk driving lawyer can mean the difference between a life altering conviction, or a mere bump in the road of your life. To discuss your case, call us at 732-257-1137 or contact us online today. We serve clients in Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

Filed Under: Criminal Law, Drunk Driving, DWI - DUI, Field Sobriety Tests, New Jersey Attorney Tagged With: , , , , , , , , , , , ,

New Jersey Appellate Court Rejects DWI – DUI Refusal Challenge

January 29, 2016 by

On January 28, 2016 a New Jersey Appellate Court rejects a DWI / DUI refusal challenge that the Standard Statement police are required to read is defective. The argument is that the Statement does not fully advise a person in custody for suspected DWI / DUI of the exact potential penalties they will be charged with if they refuse to provide a breath sample for testing to determine if they are drunk driving in New Jersey.

The defendant argued that “she should have been told that the mandatory minimum license revocation would be seven months,” and that “up to 20 years can mean anywhere between 0 days to 20 years.” She also challenged that she should have been told the mandatory minimum fine would be between $300 and $500, and that it would result in her having to install an ignition interlock device in her vehicle for a certain period of time.

In reality, the situation does potentially get even more confusing because in New Jersey – when a person is arrested for suspected DWI / DUI – most times, just prior to being read this Statement, they are also advised of their Miranda Rights, and the police then have them sign a rights card. Miranda says you have a right to remain silent, and the right to have an attorney. Then one minute later, you are read the Statement, which says you have no legal right to have an attorney, that you cannot remain silent, and that you must answer the question.

The take away from this, do not drink and drive, but if you are asked to provide a breath sample by a law enforcement officer, provide it, then hire a New Jersey DWI / DUI lawyer / attorney to help you. (you must supply at a minimum 2 good breath samples for the Alcotest to generate a test result and avoid a refusal charge.)

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Click the below link for the sourced article from the New Jersey Law Journal – January 28, 2016 by Michael Booth

NJ Court Rejects Challenge to Breath-Test Refusal Warnings

 

Contact DUI – DWI Defense Attorney Edward M. Janzekovich

To schedule a free initial consultation, contact my office online or call us at 732-257-1137. Evening and weekend consultations are available by appointment. I accept all major credit cards.

The Office of Edward M. Janzekovich can help if you have been arrested and charged with DWI / DUI in Union County, Ocean County, Monmouth County, Middlesex County, Burlington County, Mercer County & Somerset County.

We also serve the New Jersey cities of Union, Dover, Brick, Jackson, Wall, Woodbridge, East Brunswick, Evesham, Howell, Robbinsville, Bound Brook, Neptune, Hamilton, Linden City, Bridgewater & Tinton Falls.

 

Filed Under: Criminal Law, Current Events, Drunk Driving, DWI - DUI, New Jersey Appellate Court Decisions, New Jersey Attorney, Refusal to Submit a Breath Sample Tagged With: , , , , , , , , , , , , , , , , , , ,

The Ignition Interlock Device – New Jersey DWI, DUI or Refusal to Submit a Breath Sample

December 2, 2015 by

DWI-DUI Charges in New Jersey

In New Jersey, if you are convicted or plead guilty to a DWI / DUI or Refusal to Submit a Breath Sample, most likely you will have to install an ignition interlock device in your car. The device essentially works as a bypass to the ignition of your vehicle which requires a breath sample to be supplied before the vehicle will start. It will also require periodic samples as the vehicle is operated for longer time frames to keep it running so as to ensure the operator is not consuming alcohol after the initial start up.

As a first offender with less than a .15% BAC (blood alcohol concentration), the sentencing judge is not mandated to have you install it, although he or she may depending on surrounding circumstances of your incident. Once your BAC reaches .15%, the judge is mandated to order the installation of the device into the vehicle principally operated. The device must be installed all through the period of suspension and an additional six months to one year (judge discretion) after you get your license back.

A first offender who refused to submit a breath sample will be required to install an ignition interlock device as well, with the rationale that the breath sample would have been a .15% BAC or higher. Another reason to provide a breath sample – but most people learn of this incentive after the fact.

As a second offender, it does not matter what your blood alcohol concentration was as long as it was a minimum of .08% BAC. The license suspension for a second offender is 2 years, and the device must be installed in the vehicle principally operated during the entire period of license suspension and an additional one to three years (judge discretion) after you get your license restored.

As a third offender, it does not matter what your blood alcohol concentration was as long as it was a minimum of .08% BAC. The license suspension for a third offender is ten years, and the device must be installed in the vehicle principally operated during the entire period of license suspension and an additional one to three years (judge discretion) after you get your license restored.

A common question is, why do I have to put this device in my car during the period of suspension if I cannot drive anyway. That answer is not clear. Other states have interlock laws and penalties for DWI, and it appears New Jersey copied the laws from other states. The discrepancy is that other states allow you to drive during the period of suspension for very limited reasons.

Other states will grant a very limited purpose license to travel to work or school, and most require you to install an ignition interlock device in your vehicle prior to being granted that class. New Jersey does not offer a temporary, hardship or work only license, as many other states do.

Contact DUI – DWI Defense Attorney Edward M. Janzekovich

To schedule a free initial consultation, contact my office online or call us at 732-257-1137. Evening and weekend consultations are available by appointment. I accept all major credit cards.

Filed Under: DWI - DUI, Ignition Interlock Devices, New Jersey Attorney, Refusal to Submit a Breath Sample Tagged With: , , , , , , , , , , , , , , , , ,

Allowing a Drunk Driver to Operate a Motor Vehicle in NJ

September 8, 2015 by

 

Most people are aware that if they operate a motor vehicle while intoxicated, they can be charged with a DWI offense. But what very few people are aware of is that even if you are not driving the vehicle, you could still be found guilty of a DWI violation.

The New Jersey DWI statute is NJSA 39:4-50. Section (A) of this statute states: Except as provided in subsection (g) (school zone) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of.08% or more by weight of alcohol in the defendants blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of.08% or more by weight of alcohol in the defendants blood shall be subject : The penalties are all exactly the same regardless if you are driving drunk or allowing a person to drive drunk. The New jersey Supreme Court holds the Allowing offense at the same level of responsibility as the act of actual drunk driving, banning any plea bargaining, adhering to the Zero Tolerance policy. In State v Hessan, the Court said ” The act of unleashing a drunk driver onto the highways creates the very risk to the safety of other drivers and the public that is posed by the intoxicated driver.”  However, on an Allowing offense, the State has to prove additional different elements than the original DWI charge.

The State has to prove that the person being charged with the allowing offense had owned the vehicle or had custody and control over it. The State also has to prove that the person being charged with the allowing offense had knowledge of the intoxication of the driver and had their consent to operate the vehicle. These elements are not so easy to prove at times.

A typical scenario for an allowing a drunk driver to operate a motor vehicle violation is when two or more friends go out drinking.  At the end of the night, the driver tells the passengers that he is too drunk to drive home, and one of the passengers decide to drive home because they are only buzzed. The police stop the vehicle, the drunk owner is sound asleep in the passenger seat completely unaware as to what is happening. Both are arrested and charged with DWI.  The same scenario happens if the registered owner of the vehicle is completely sober, in the passenger seat, but the driver is intoxicated. This is typically a husband and wife scenario in the vehicle.

If you or a loved one has been charged with an Allowing offense, you should hire a lawyer whose sole practice specializes in DWI / DUI defense. The facts and circumstances surrounding the allegation of the charge need to be closely examined to identify available defenses and mitigating factors.

The Law Office of Edward M. Janzekovich is a law firm with a sole focus of defending persons charged with DWI / DUI related offenses. The defense strategy used is to identify legal discrepancies in police procedure that implicate constitutional, medical, scientific or evidentiary issues, with the motor vehicle stop, field sobriety tests and blood alcohol tests.

Filed Under: Drunk Driving, DWI - DUI Tagged With: , , , , , , , ,

Implied Consent

July 24, 2015 by

Most people are aware that if they are stopped by law enforcement and there is reasonable suspicion that they are driving while intoxicated, the driver is required to provide a sample to determine if they are under the influence, but a sample of what?  The law varies from state to state.  For instance:

The Implied Consent Law in New Jersey is different than that of Rhode Island.  In Rhode Island, Implied Consent means that any person who drives a motor vehicle in Rhode Island has given consent to Chemical Test (Breath-Blood-Urine – arresting officers choice apparently) to determine the amount of alcohol/drugs, if any,  in your system after you have been arrested for suspected driving while intoxicated (DWI).   Refusing to provide that sample is an additional charge carrying additional license suspensions and fines. (source – RI DMV website)

The New Jersey Implied Consent Law that states that all persons operating a motor vehicle on New Jersey roadways has agreed to submit to a Breath Test following an arrest for suspected drinking and driving.  In addition to the original underlying penalties of the driving while intoxicated offense, failing to provide a breath sample will result in an additional charge carrying an additional period of suspension and other penalties.

However, New Jersey’s implied consent law does not currently mandate that you submit to a blood test or urine test.  If taken to the hospital as a result of an investigation, such as an accident, you most likely did not perform standardized field sobriety tests.  If you are suspected of being under the influence of an alcohol or drug, you will be asked for your consent to voluntarily provide a sample of your blood or urine to test.  This is because although the breath test machine used in New Jersey, the Alcotest 7110c, is designed to be mobile and transportable to the scene or hospital, it is not the practice in New Jersey.  So to gather evidence of intoxication to be used against you, your blood or urine will be required.

If you believe you have alcohol or drugs in your system, or if you just do not want to, you should refuse to voluntarily give consent for the collection of your blood or urine.  If a DWI charge is to be pursued against you, a judge would have to issue a warrant (Fourth Amendment protections against unreasonable searches and seizures – barring exigent circumstances) for non-consensual blood testing to collect a sample. However, if a warrant is obtained, you are legally required to provide the type of sample described in the warrant and reasonable force may be used to collect that sample if necessary.  Refusing to provide a sample after a warrant is issued will result in an additional charge(s) carrying additional license suspensions and penalties, which may also expose you to potential criminal charges.

So, according to the Rhode Island Division of Motor Vehicle website, a New Jersey resident on vacation, visiting a relative or just driving through Rhode Island that is stopped for a suspected DWI is required to submit to chemical testing.  Chemical testing of your breath, blood or urine, without the need of a warrant, even though as a New Jersey license holder, your implied consent requirements are for only breath samples.

* Disclaimer – Edward Janzekovich is a licensed attorney in the State of New Jersey and not in Rhode Island.  The information provided is to contrast implied consent laws between NJ and RI. Information is obtained directly from the Rhode Island DMV website and this is not to be interpreted as providing Rhode Island legal advice.

Filed Under: DWI - DUI, Implied Consent, New Jersey Attorney Tagged With: , , , , , , , , , , ,

Drunk Driving Discovery

October 26, 2012 by

CRIMINAL LAW AND PROCEDURE — DISCOVERY — DRUNK DRIVING

14-2-8052 State v. Carrero, App. Div. (Sabatino, J.A.D.) (28 pp.) We review discovery orders separately issued in these two DWI cases authorizing defense counsel and/or defense experts to inspect and photograph rooms within the police stations where their respective clients provided breath samples on the Alcotest device in order to verify that the tests were properly administered. In Carrero, such access was granted to help ascertain whether devices emitting radio frequency interference (RFI) had been located in the station within 100 feet of the testing area. In Baluski, such access was granted to help ascertain whether the interior layout of the station physically prevented defendant from being observed for the required 20 minutes before testing. We reverse the discovery orders because neither defendant has shown a reasonable justification to conduct the requested inspection. We conclude that Carrero’s request is insufficient in light of the Supreme Court’s binding legal and evidentiary determination in State v. Chun, 194 N.J. 54, 89, cert. denied, 555 U.S. 825, 129 S.Ct. 158, 172 L.Ed.2d 41 (2008), that the Alcotest is designed in a manner that is “well shielded from the impact of any potential RFI,” and also in light of the state’s countervailing security interests disfavoring routine civilian access to the interior of a police station.

We conclude that Baluski’s request is likewise insufficient because he has presented no affirmative basis to believe that an officer failed to observe him for the 20 pretesting minutes required by Chun, 194 N.J. at 79, and also in light of the state’s countervailing security interests.

Source – NJSBA Daily Briefing

Filed Under: Criminal Law, Drunk Driving, DWI - DUI Tagged With: , , ,

AUTOMOBILES — DRUNK DRIVING — LICENSE SUSPENSION

October 25, 2012 by

05-2-8058 Foehner v. New Jersey Motor Vehicle Commission, App. Div. (per curiam) (5 pp.) Appellant Robert Foehner appeals from the Motor Vehicle Commission’s (MVC) denial of an administrative hearing before imposing a 3,650-day suspension of his driver’s license due to a fourth conviction for an alcohol-related offense. The MVC asserts that appellant was convicted of his first DUI on May 28, 1986, his second on November 2, 1990, his third on December 19, 1992, and the fourth on September 21, 2011. The first three offenses occurred in New Jersey; the fourth occurred in Arizona.

On appeal, appellant notes that the driving history provided with the notice of suspension contained only one prior alcohol-related motor vehicle offense dating back to December 19, 1992. He argues that, as a matter of procedural due process, he is entitled to an agency hearing to evaluate the legal and factual bases for the imposition of a 3,650-day suspension. The appellate panel disagrees and affirms the suspension. Appellant does not contest that he has been convicted of DUI on four occasions, nor does he raise any legal issues to be addressed by the MVC. Rather, appellant merely contends that the MVC did not provide him with proof of all four of his DUI convictions when it initially issued the suspension notice. Since no disputed issues of material fact existed, and no legal issues were raised, no evidentiary hearing was required before the mandatory suspension was imposed.

Source – NJSBA Daily Briefing

Filed Under: Criminal Law, Driver's License Suspension, Drunk Driving Tagged With: , , , , , ,

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