You should always try to challenge a driving under the influence (DUI) charge. In New Jersey DUI is covered by N.J.S.A. 39:4-50. The statute requires the state to prove 1) you operated a motor vehicle; 2) that you were under the influence of alcohol, a controlled dangerous substance (CDS) such as heroin or methamphetamines, or even your own prescription for Oxycodone, Percocet, Xanax or other medications which could impair your ability to operate a motor vehicle; and 3) that your ability to operate a motor vehicle was impaired. In their effort to prove their case and convict you of driving under the influence the police will employ many pieces of evidence which you should seek to challenge.
Often police reports indicate failure to maintain lane, malfunctioning lights and sometimes random callers as probable cause for stopping you. If you have friends driving with you in another vehicle who can testify you were not swerving or a mechanic who will testify that you lights were in proper working order you can challenge the officers statements. Always ask for the 911 tape if the police claim they received a call about your driving from another motorist. Your performance of the field sobriety tests (FST) is subjective and may be open for challenge, particularly if you had an unimpaired witness in the vehicle. The officer may not have substantial experience in administering field sobriety tests or properly documenting your performance in his reports. The Alcotest machine requires very specific protocols for operation as set forth in State v. Chun, 194 N.J. 54 (2008) and police occasionally fail to follow the procedures. They are required to observe you for 20 minutes prior to administering the test and check your mouth for foreign objects such as gum or candy to insure there is nothing trapping alcohol in your mouth which can affect the test. All radios and cellular phones are to be removed from the testing area as they can affect the machine.
The Alcotest machine must be tested and serviced on regular and prescribed intervals and the solutions utilized in its operation are subject to the same requirements. Finally, in a drug DUI, a Drug Recognition Expert (DRE) will assess you. The DRE will make a report including your vital signs, eye movements and reaction to light, muscle tone, ability to assess the passing of time and other indicia of impairment but the test is non-scientific and many courts will not consider the report because the possibility of error is so great. The DRE will also take a urine sample but if a drug can remain in your system for days or weeks, its presence in your urine does not prove you were driving under the influence when stopped.