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Can I be Found Guilty of DWI in NJ Based on a Failed Road Side Sobriety Test?

TThe first thing many of my DWI clients ask me is whether the State can prosecute a DWI based solely on an officer finding that an individual failed a Road Side Sobriety Test. In New Jersey, the State must prove that an individual was Driving While Intoxicated beyond a reasonable doubt. However, the State does not always need a failed Breathalyzer or Alcotest to meet this burden. The State can meet their burden by objectively proving that an individual’s physical coordination or mental faculties are impaired. In one case, the Supreme Court of New Jersey found that the defendant’s admission that he consumed a considerable amount of alcohol combined with the police officer’s observations that the defendant was intoxicated was enough to sustain a charge of DWI.


In another case, the New Jersey Superior Court, Appellate Division found that a conviction for DWI can be sustained based solely on the police officer’s observation that the defendant smelled of alcohol, had slurred speech and displayed slowed hand movements. Given the weight that Road Side Sobriety Tests can have in a DWI prosecution it is imperative that a New Jersey Criminal Defense Attorney or New Jersey DWI Attorney review and analyze the evidence against an individual charged with DWI to ensure that the arresting officers followed correct protocol.


Quite often the arresting officers fail to administer Road Side Sobriety Tests as they are trained to do. Other times the arresting officers fail to take additional factors into consideration like weather, type of footwear the individual was wearing, medical reasons and other relevant factors. It is critical that these factors are brought to the prosecution’s attention in all DWI cases. If you or a loved one have been charged with DWI feel free to call New Jersey Criminal Defense Attorney and New Jersey DWI Attorney Joel Silberman for a free consultation. *The information contained herein does not constitute legal advice nor form an attorney-client relationship. The contents contained herein are intended for informational purposes only.


Sentencing Guidelines for New Jersey Drug Cases – “The Brimage Guidelines”

IIn 1998, the Supreme Court of New Jersey decided the landmark case of State v. Brimage, 153 N.J. 1 (1998). The Brimage case established guidelines to regulate a defendant’s exposure to a mandatory minimum term of imprisonment for certain drug related offenses. The Brimage case also established an analysis that every Prosecutor in the State of New Jersey must use in order to formulate a plea offer for certain drug related offenses.

Given the extreme sentencing exposure associated with drug related offenses in New Jersey it is critical that you hire an experienced criminal defense attorney to defend your case and protect your rights. Many prosecutors and judges fail to recognize that although the Brimage guidelines are extremely tough on drug offenses they also offer multiple exceptions. Some of these exceptions include those for first time offenders or for those that have a prior record that is not drug related. Other possible exceptions or alternatives include drug court.

It is critical that all these details be examined carefully to ensure your rights and freedom are not violated. If you have been charged with a drug related offense please contact Joel Silberman today for a free consultation and a review of your case.



DWI in New Jersey – The Alcotest & State v. Chun

IIn 2008, the Supreme Court of New Jersey issued its opinion in State v. Chun 194 N.J. 54 (2008) finding that the Draeger Alcotest 7110 MKIII-C (“Alcotest”) breath-testing device using software version 3.11 was reliable for admission in all New Jersey courts. The Court, however, did not give the State free reign in prosecuting DWI cases with the Alcotest. Rather, the Court found that the Alcotest’s results should only be deemed reliable if a number of very specific conditions were met.


One of these specific conditions is known as the “20-Minute Observation Period.” The Court specifically found that the officer operating the Alcotest is required to observe the alleged violator for twenty-minutes before administering the test to ensure that the alleged violator does not jeopardize the test in any way. Analyzing the “20-Minute Observation Period” is a critical part of defending any DWI case for any New Jersey Criminal Defense Attorney. There are a number of technical ways the police officer administering the Alcotest can violate the “20-Minute Observation Period.” A trained and experienced New Jersey Criminal Defense Attorney should always analyze whether the police violated the requirements associated with the “20-Minute Observation Period.”


The Court also imposed requirements regarding preparing the testing area and instructing the alleged violator. First, the police officer administering the Alcotest is required to attach a new mouthpiece to the machine and remove all cell phones and electrical devices from the testing area. Next, the police officer is required to instruct the alleged violator as follows: “I want you to take a deep breath and blow into the mouthpiece with one long continuous breath. Continue to blow until I tell you to stop. Do you understand these instructions?” Analyzing the instructions that the police gave before administering the Alcotest is a critical element for any Criminal Defense Attorney in New Jersey who is defending a DWI case.


In addition to these requirements, the Court touched on a number of other technical requirements. These include opinions about the Alcohol Influence Report, Error Messages, Breath Volume, Breath Temperature, Tolerance and Machine Calibration, and Repair Records. Given the extreme consequences that come with a DWI conviction and the complexity and technical nature of the Alcotest it is critical that a trained and experienced New Jersey Criminal Defense Attorney analyze all the results and evidence in every DWI case.


The information contained herein is not legal advice and does not create an attorney-client relationship. The information contained herein is solely for informational purposes.


Are Bath Salts Illegal in New Jersey?

Over the past few years New Jersey has seen an influx of Bath Salts being sold at corner stores and truck stops around the Jersey Shore and many college campuses. The highly hallucinogenic substance commonly referred to as Bath Salts contains a derivative that is similar to amphetamines and is, according to medical experts, capable of producing the same hallucinogenic and superhuman feelings of LSD, Ecstasy and PCP. On April 11, 2011, the State of New Jersey introduced a bill that criminalizes possession and sale of Bath Salts. The bill amends section 2C:35-2 of New Jersey’s Criminal Code to include Bath Salts as a controlled and dangerous substance under New Jersey Law. Under the Statute it is a crime of third degree to distribute or possess with the intent to distribute Bath Salts and a crime of the fourth degree to illegally possess bath salts. As a result, all charges involving Bath Salts in the State of New Jersey will be prosecuted as indictable offenses that could result in state prison sentences. Given the sentencing exposure and consequences associated with charges related to Bath Salts in New Jersey it is critical that you consult a New Jersey Criminal Attorney to defend your case and ensure your Constitutional rights are not violated. For a free consultation please call New Jersey Criminal Defense Attorney Joel Silberman.


Why Should I Seek an Expungment?

Having a clean criminal record is a huge asset. Initially many of my clients do not realize that even if their case is dismissed or if they are acquitted at trial the record of their arrest stays on their criminal record. However once an Order of Expungment is entered law enforcement is required by the Judge’s Order to isolate all record of the arrest, conviction, dismissal or acquittal. In addition, and more importantly, an Order of Expungment allows the individual to state that the arrest, conviction, dismissal or acquittal never happened. In today’s competitive employment market a successful expungment can be the difference between getting a job and being turned down for another applicant. Please contact Joel Silberman to discuss expunging any cases that may be burdening you.

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