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NJ Driving Under the Influence Defense: What to Do if You Are Pulled Over By the Police

Posted by David Schwartz on February 8, 2016  |   No Comments »

With an experienced NJ criminal defense lawyer, there are significant defenses to NJ driving under the influence cases. How you behave in the event that you are pulled over by a police officer can influence whether you are arrested and/or convicted.

Most importantly, do not drink or take drugs and drive. This is the best “defense” against a driving under the influence conviction.

Be aware that, if you are pulled over, the police officer will make a series of observations that will factor into his or her decision regarding whether there is probable cause to arrest you for driving under the influence. Much of what the officer observes will be included in his police report. There is also likely to be an audio and video recording of your interaction with the officer. There are certain steps you can take to de-escalate the encounter and increase your chances of success at trial. You may even avoid arrest entirely.

First, when the officer signals for you to pull over, do so as promptly and as safely as possible. If you swerve, drive erratically, pull over too quickly, or too slowly, or park in an unsafe location, this will be included in the officer’s report. If you drive well and pull over safely, this will likely be recorded on the officer’s on-board video, which will demonstrate important evidence of your sobriety.

Next, be cooperative and polite, and do not make any sudden movements. If the officer perceives you to be rude, he is more likely to arrest you or include negative information in his report. If he perceives you to be dangerous, the situation may escalate.

You should always have your driver’s license, insurance and registration cards handy, in order to avoid the fumbling for documents frequently noted on police reports.

You are under no obligation to answer when an officer asks you whether you have been drinking, and your failure to answer cannot be used against you in court. Politely advise the officer that you would prefer to consult an attorney. In one of our recent cases, our client advised the police officer that he “drank his face off.” This was not helpful, of course. You do, of course, have to provide the officer with your name, license, and registration.

Never try to talk a police officer out of arresting you. This always backfires, and often makes things worse, especially if you ramble or talk about all of the family and friends you have that are law enforcement officers.

While you are under no legal obligation to perform a field sobriety test, failure to do so will, in the view of most judges, provide evidence of guilt. Field sobriety tests are difficult for even sober individuals to “successfully complete,” and are, in fact, completely subjective. For example, how many older individuals have difficulty standing on one foot for 30 seconds while raising the other foot 6 inches off the ground and counting? Nervousness can also cause an individual to fail. If you have any reasons why you might have difficulty with the test, make sure that you explicitly advise the officer IN ADVANCE OF TRYING TO PERFORM THE TESTS. Reasons include back, leg, foot or knee injuries, or problems with balance. If you suffer from any of these conditions, inform the officer, and decline to take the tests. Be sure that you can back up our condition medically, however.

You should never refuse to take a chemical breath test at the police station, since refusal is, in and of itself, a separate offense that carries significant and similar penalties to driving under the influence. If you refuse to take the breath test, you will almost certainly be charged with both driving under the influence and refusal. Be aware that an experienced driving under the influence attorney will examine the breath test results. In many instances, there may be a defense to the procedures used in taking the test which will result in exclusion of test results at trial.

You are, again, under no obligation to answer any questions regarding alcohol or drug consumption when you are at the police station. You will be given your Miranda warnings (i.e., you have the right to remain silent, etc.), and you should decline to answer such questions. However, if you are ill and your condition might make you seem under the influence (diabetes is a typical example), you should advise the officer at that time. You should not discuss medications you have taken, however, because you can be convicted of driving under the influence of legally prescribed drugs, such as, for example, Xanax.

Once you are released, write down all that you recall about the incident, and contact an experienced NJ driving under the influence lawyer. You need and deserve an experienced defense attorney who will fight for your rights.

Our firm obtains excellent results for clients charged with NJ driving under the influence in the New Jersey Municipal Courts. We have represented individuals in Municipal Court traffic and disorderly persons offenses and municipal ordinance matters, juvenile court matters, and Superior Court indictable criminal cases, for over 30 years. We practice throughout the State of New Jersey, and have a proven track record of excellent results for our clients. Please contact us in any one of our convenient locations, including our Monmouth County office, located in Eatontown (at the Jersey Shore), our Essex County office, located in Livingston, our Union County office, located in Linden, or our Middlesex County office, located in East Brunswick, to discuss your case. You may call the experienced driving under the influence and criminal defense attorneys of Schwartz & Posnock at 732-544-1460 or email us at

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