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DUI & DWI Defenses

Learn about the various legal defenses that may be utilized to challenge DUI and DWI charges throughout New Jersey.

Illegal Motor Vehicle Stop

Article I, paragraph VII of the New Jersey Constitution provides that all citizens have the right to be free of all “unreasonable searches and seizures.” As a result, law enforcement must have some legal justification for pulling you over. In New Jersey, the standard is that law enforcement must have “reasonable suspicion” that a crime has occurred or that a motor vehicle offense has been committed. If the State cannot meet that standard, all evidence obtained as a result of the motor vehicle stop may be suppressed and is inadmissible against you at trial.


One of the basic elements the State must establish in order to prove its case against you is operation of the motor vehicle. Depending on the facts of your case, operation may be at issue. There have been a number of cases that have addressed this issue of operation. In State v. Sweeney, 40 N.J. 359 (1963), the defendant was found sitting in the driver’s seat of his car, which was parked at the curb with the motor running. The Court held that the defendant could be convicted of “operating” his car if there was evidence that infers he intended to move the vehicle. In State v. Daly, 64 N.J. 122 (1973), the Supreme Court held that an individual parked outside of a bar at 3:20 a.m. with the lights on and motor running was not operating a motor vehicle and therefore cannot be charged with DUI.

Failure to Provide Discovery (Evidence)

Pursuant to New Jersey Supreme Court case State v. Chun and the Rules of Court, the prosecution must provide all evidence in its possession as well as various discovery pertaining to the Alcotest 7110, the device utilized to test breath defendants’ breath samples (commonly referred to as a “breathalyzer”). If the State fails to provide this evidence, your defense attorney can file a motion to compel the production of evidence can be filed. If granted, an Order will be issued to force the prosecution to provide the evidence it is withholding. The State’s failure to comply with the Court’s order may result in the entire case being dismissed.

Understanding how the Alcotest 7110 must be utilized to establish accurate readings is essential. Daniel Rosenberg is one of only approximately 25 attorneys in New Jersey licensed to operate this device. As an Alcotest-certified DUI attorney, Daniel Rosenberg can tailor your defense based on the results of the Alcotest machine and any other evidence provided by the State.

Standardized Field Sobriety Tests (“SFST”)

There are several “standardized” field sobriety tests: one-leg stand, walk-and-turn, and horizontal gaze nystagmus (an eye test referred to as HGN). The results of these tests are used by law enforcement as evidence of intoxication. In New Jersey, the results of the HGN eye test cannot be used against a defendant. There are also other factors that compromise the validity of these tests, such as certain medical conditions, weight, age, and physical injuries that an experienced DUI attorney will investigate to build your defense.

MVR (Mobile Video Recorder)

Some police departments have MVR recordings of your motor vehicle stop and the administration of your SFSTs. It is less frequent that departments have video within the police station. These videos are utilized to evidence your physical and mental condition at the time of your arrest. You are entitled to a copy of all videos and evidence relating to your DUI arrest. These videos can be used to establish that you performed better on your field sobriety tests than was reported by the officer in his police report. The videos also can be used to challenge the credibility of the arresting officer(s). Finally, the failure to produce such videos or the destruction of such videos (intentionally or otherwise) can be a basis to dismiss your case.

Failure to Read Implied Consent Warnings

Everyone facing an arrest and DWI charges in New Jersey must be read a standardized statement drafted and approved by the New Jersey Attorney General’s office. That statement must be read in language that you can understand. If you do not speak English, it must be read in a language that you understand. Failure to read the statement and properly advise a defendant may lead to the dismissal of the charge(s).

Certification Deficiencies

Any law enforcement officer who operates an Alcotest 7110 device in New Jersey during an arrest must be properly trained and certified. Those certifications must be current and copies must be provided to your defense attorney. If the officer administering the Alcotest does not possess valid certifications then the breath results are inadmissible in court. Additionally, each Alcotest 7110 in New Jersey must be inspected and recalibrated periodically. This procedure is documented and must be done within a specified time period. The documents are produced at trial to evidence that the machine was in proper working order at the time the breath sample was taken. Failure to provide such documentation may result on the breath test results being deemed inadmissible.

As an Alcotest-certified DUI attorney, our lawyers have intimate knowledge of the proper administration and maintenance of these devices to ensure any evidence presented against you is fair and valid.

Twenty-Minute Period of Observation

The accuracy of a breath sample may be affected by the presence of mouth alcohol. Mouth alcohol can be present if a defendant is chewing gum, vomits, belches or regurgitates in his/her mouth. As a result, the Supreme Court requires that each person submitting to a breath test be observed for a period of twenty (20) minutes immediately prior to providing a breath test. Failure to do so may result in the breath samples being inadmissible and the DUI charges dismissed.

Proper Operation of the Alcotest 7110

The Supreme Court has outlined, in detail, the steps and procedures an officer must follow when administering a breath test. The officer’s failure to follow these steps calls into question the validity of the breath test results and may result in the results being deemed inadmissible. Daniel M. Rosenberg has received training and certification in proper operation of the Alcotest device to ensure the arresting officer follows these procedures.

Blood Collection

Law enforcement must follow specific procedures for drawing blood when use of that sample is expected or anticipated in a prosecution. These procedures differ from those followed by EMTs or hospitals. Failure to follow proper procedures may result in the results being deemed inadmissible. In addition, New Jersey case law requires law enforcement officers to obtain a search warrant before a defendant’s blood can be taken without his or her consent.

Drug Recognition Evaluations (“DRE”)

It is against the law to drive while under the influence of a controlled dangerous substance, such as marijuana, cocaine, heroin or oxycodone. In New Jersey, some officers have received training as Drug Recognition Evaluation experts. These officers, and the State, claim that DRE experts can accurately determine whether someone is under the influence of a CDS. DRE testimony has not been deemed reliable evidence to prove guilt beyond a reasonable doubt.

Medical Conditions

There are various medical conditions that may negatively affect the State’s proofs in a DUI case. There are two (2) varieties of such medical conditions. First, some medical conditions have symptoms that mimic intoxication. Providing evidence of such conditions to the State may raise reasonable doubt as to whether someone was under the influence of alcohol or merely suffering from a medical condition. These conditions may include diabetes, vertigo, a concussion and prior knee/ankle injuries. Second, some medical conditions may not mimic intoxication, but will affect the validity of a breath test. These conditions include G.U.R.D., post nasal drip, crying and the presence of blood in the mouth.

Police Reports

Law enforcement officers are trained to draft reports setting forth the facts and circumstances surrounding the arrest and investigation of a defendant for drunk driving or other DUI-related charges. Officers receive this training in the police academy. Your defense lawyer can use the information contained in the police report to challenge the officers’ account of the arrest. By way of example, inconsistencies amongst various reports can call into question the accuracy of the State’s facts. Police reports are also utilized to cross-examine officers who testify at trial if their testimony is not consistent with their report.

Bad Weather

The weather on the date of your arrest can have tremendous significance on your defense strategy. Rain, snow, sleet, etc. may explain erratic driving or swerving. It may also explain poor performance on Standardized Field Sobriety Tests.

DUI and DWI Defense Law Firm

The consequences of a DUI in NJ can be severe — that is why it is important to entrust your case to an experienced DUI attorney. In addition to our history of defending DUIs, Daniel Rosenberg has successfully completed the Draeger Alcotest 7110 operator training course, which is law enforcement training on legal issues and operation of breath tests.

Contact Rosenberg | Perry & Associates, LLC to speak with us about your DUI charges today.

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