Quite often when speaking to potential clients, I and the trial attorneys on my legal team are asked how a motorist could possibly fight a drunk driving charge when the police have evidence, such as a breathalyzer test or a seized open container of alcohol, to show the court. Before getting too far ahead of themselves we usually remind these individuals that there are several important aspects to a DWI defense.
As New Jersey drunken driving lawyers, my firm has decades of collective experience protecting the rights of motorists from all walks of life as they face charges of driving while intoxicated by alcohol or operating a motor vehicle while impaired by prescription drugs. One of the more important facts that must be established before a DWI-DUI case can go forward is whether or not the initial traffic stop was performed in the proper manner.
When it comes to defending someone accused of driving under the influence of alcohol or drugs, the question of whether the traffic stop, which usually comes prior to a DWI or drug DUI arrest, was valid to begin with. If it was, then there must be evidence of intoxication from alcohol, cocaine, marijuana or prescribed meds. If the traffic stop was not based on an observed traffic offense or other action that would give an officer the right to pull the motorist over, then it is likely that a skilled attorney can use this fact to his client’s advantage.
Assuming a valid stop was made, there are a number of issues involving intoxication to the point of impairment that police must establish from an evidentiary standpoint. One type is the so-called “Plain View” or “Plain Smell” Doctrine. Because it is the patrolman’s job to determine if there is incriminating evidence of intoxication, an officer will often scan the interior of the subject’s vehicle to find any evidence of intoxication. This can include open alcoholic beverages, possible drug containers or drug paraphernalia, etc.
While a warrant is required in most cases prior to a police officer conducting a search of a motor vehicle, there is always the “plain view” exception to consider. Under this exception, a policeman must first be legally permitted into the area of observation; he must find the evidence inadvertently; and the item observed must be “immediately apparent” to the patrolman as an object that constitutes evidence of a crime (or contraband).
Occasionally, a patrolman or state trooper making the traffic stop does not necessarily have to “see” evidence of intoxication, but can rely on the smell or odor that may be coming from the vehicle or occupant. The “plain smell” component of the aforementioned doctrine can serve as evidence of intoxication. Examples of common odors that may be used as evidence include the smell of alcohol on a motorists breath or the burnt or raw smell of marijuana.
Admissible evidence under the “plain smell” doctrine must be based on the three previously mentioned criteria for the “plain view” exception. While this may sound like a simple way for the police to arrest and charge a driver for DWI, there are cases where an expert witness for the defense can testify during the trial that a patrolman’s ability to detect the odor of alcohol is correct less than 50 percent of the time. Calling into question the odor-related evidence generated during a traffic stop can be an important piece of the defense’s strategy.
As with any drunken driving hearing, the prosecution’s case against the motorist must be supported by evidence of intoxication as defined by the Supreme Court; more specifically as a “substantial deterioration or diminution” of the driver’s “mental faculties or physical capabilities” due to an intoxicating substance such as liquor, narcotic medicine, hallucinogenic or habit producing drug, etc. An experienced DUI defense lawyer typically has the skills and legal background to assist his or her client before, during and after the court hearing.