Instead of a dry, boring article, the following is an excerpt from a recent interview with Attorney Leckerman on the subject.
Interviewer: In New Jersey, what should someone expect from the moment they have been arrested for DWI through the first 30days?
Leckerman: Typically, the officer will issue a summons to the driver at the time that he or she is released from custody. On some occasions, the police officer doesn’t issue the ticket immediately. However, the officer has ninety days from the date of the offense to serve the complaint on the driver. If the officer fails to ticket the driver within ninety days from the date of the alleged DWI, then there is a violation of the statute of limitations, which can be used as a defense to the DWI charge.
When the driver is issued a ticket, there will be a court appearance date that is on the bottom of the ticket. That date is within a couple of days to a week after the arrest. So, the driver has a very short window of opportunity to find an attorney for the next hearing date. There is a necessity to hire the attorney right away in order to conduct a potential investigation into the circumstances surrounding the situation. If an investigator is needed to take photographs of the scene where the incident took place, then that should be done immediately. If witnesses need to be interviewed, then that should also be done immediately before the memory of the witnesses can fade. Sometimes, the issuing officer can be contacted as well to get an idea of what occurred during the investigation in order to be better prepared for the first hearing date. Usually, the officers will not talk to the attorney prior to the first hearing date and prior to the police reports being sent to the defense.
Interviewer: Because the first court date is so close to the time of being stopped and arrested, what about blood and urine and breath testing? Are breath tests preferred by the police?
Leckerman: In New Jersey, there is a requirement that every driver who is suspected of DWI provide a breath sample. The requirement only pertains to breath samples, not urine or blood samples. Therefore, a driver can refuse to give a blood or urine sample or participate in a drug recognition evaluation if requested. However, the driver does not have the option of refusing to give breath samples without facing additional penalties.
Interviewer: Is there a difference between refusing a roadside breath test versus a breath test back at the police station after you’ve been arrested?
Leckerman: Yes, there is. The police sometimes use a portable breath test device (PBT) at the scene of the investigation. The results of the PBT are not admissible as evidence. A driver is free to refuse to give a breath sample at the scene prior to an arrest for DWI.
At the station, provided there was probable clause to arrest the driver, then the driver has an absolute obligation to give breath samples.
Interviewer: Is there anything else to know about the first court date?
Leckerman: In New Jersey, the first hearing is actually called a preliminary arraignment, where the driver is advised of the charges that were filed against him or her. The driver is advised of the penalties to these charges and that he or she has the right to an attorney and a trial in the matter.
If the driver gets an attorney involved before the preliminary arraignment, often the appearance at the preliminary arraignment can be waived, so neither the lawyer nor the client has to go to court. Then, the lawyer would make a request for discovery, which consists of police reports, information concerning the breath test machine, video tapes, and any other pertinent information concerning the case.
The prosecutor and the police department both have the obligation to provide the discovery to any defendant. If the prosecution fails to provide the discovery, then a motion to compel discovery can be filed where the lawyer asks for the judge to sign an order making the state provide the discovery within a certain period of time. If that information hasn’t been provided within the ordered time period, then a motion to dismiss part or all of the case can be filed.