Drunk Driving: The Driver’s Rights Before, During and After a DUI/DWI Arrest

Did the police violate your rights before, during, or after your drunk driving arrest? If so, this may provide a defense to your DUI/DWI charge.

As a United States citizen and a driver in the State of New Jersey, you have important rights when the police pull you over. Knowing your rights can help you make smart decisions on the side of the road; or if it is too late for that, understanding whether your rights have been violated will be critical to building the strongest possible defense for your DUI/DWI trial.

If the police violated your rights, this could provide a defense to your DUI/DWI charge. This is true even if there is no question that you were driving while impaired or intoxicated. Violations of suspects’ rights can lead to evidence being deemed inadmissible, and this can lead to prosecutors lacking the evidence they need to meet their burden of proof.

Your Rights as a Driver in New Jersey

1. You Have the Right to Be Free from Unreasonable Searches and Seizures.

Under the Fourth Amendment to the U.S. Constitution, you have the right not to be stopped without reasonable suspicion, and the police cannot arrest you without probable cause. The police must have a specific reason for pulling you over (i.e. you were speeding or drifting onto the shoulder), and they cannot place you under arrest you unless the evidence suggests that you are guilty of DUI/DWI.

The Fourth Amendment also entitles you not to consent to a search of your vehicle. If the arresting officer searches your vehicle without your consent (and without a warrant), any evidence obtained may be inadmissible in your DUI/DWI case.

2. You Have the Right to Remain Silent.

When you are pulled over on suspicion of drunk driving, the police officer who stops you will ask you lots of questions: How much have you had to drink? Where were you drinking? Do you have any alcohol in the vehicle?

You do not have to answer these questions, and you should not do so. You have the right to remain silent, and you need to resist the officer’s attempts to get you to say things that can be used against you.

3. You Have the Right to an Attorney.

From the moment you are pulled over, you have the right to legal representation. This means that you can refuse to speak with the officer or take any field sobriety tests (FSTs) without your attorney present.

4. You Have the Right to a Clear Explanation of Field Sobriety Test (FST) Procedures.

If you consent to taking the field sobriety tests (FSTs), you are entitled to a clear explanation of the testing procedures. If the arresting officer does not accurately explain how you are supposed to perform the tests, your test results may be deemed inadmissible at trial.

5. You Have the Right to Refuse the FSTs.

Not only do you have the right to a clear explanation of the FST procedures, but you also have the right to refuse to take the FSTs. While you cannot refuse the Alcotest (more on this below), you are well within your rights to politely decline to perform the walk-and-turn, horizontal gaze nystagmus, and one-leg stand tests.

6. You Have the Right to Leave if You are Not Under Arrest.

If you are not being arrested, you have the right to move on with your day. The police cannot detain you if they do not have probable cause to make an arrest.

7. You Have the Right to Be Read Your Rights.

If the police wish to interrogate you while in custody, they must read you your rights. This is known as the Miranda warning that you often hear about from movies and TV. If the police question you while in custody without reading the Miranda warning – and if you make a statement that the prosecutor subsequently tries to use against you – your lawyer may be able to use the Miranda violation as a way to have your statement suppressed from the case.

These are not all of your rights, but they are some of the most important. For more information, contact our firm now for a free consultation.

What Can You Do if the Police Violated Your Rights?

If the police violated your rights, what does this mean for your DUI/DWI case? At the moment, it doesn’t mean anything. Unfortunately, the police frequently violate suspects’ rights (though not always knowingly or intentionally), and in many cases, these mistakes never get addressed.

To use the violation of your rights as a defense in your DUI/DWI case, you must raise the issue in court. This is up to you. It is not something that the police or prosecutors are going to do for you.

You must specifically identify the violation—what right was violated and when and how the violation occurred—and then you must file a motion. Once you file your motion, the judge will consider the available evidence, and he or she will decide both (i) whether a violation occurred; and, if so, (ii) whether this means that certain evidence should be excluded from your DUI/DWI case.

Due to the challenges involved (and the severe consequences of being wrongfully convicted of DUI/DWI), if you believe that the police violated your rights, you should promptly consult with an attorney. Your attorney will be able to determine if you have a motion to file. If you do, your attorney can seek to have the relevant evidence excluded from your DUI/DWI case. If the prosecution’s remaining evidence is insufficient to prove your guilt beyond a reasonable doubt, then this could mean that you are entitled to a dismissal.

You Do Not Have the Right to Refuse the Alcotest

Importantly, in New Jersey, one right you do not have is the right to refuse the Alcotest. Under the state’s implied consent law, you can face additional charges and penalties if you refuse to submit to a chemical test of your blood alcohol content (BAC).

Call Now to Speak with a New Jersey DUI/DWI Defense Lawyer

If you are facing drunk driving charges in New Jersey, contact the defense team at Helmer, Conley & Kasselman, P.A. for a free and confidential consultation. To speak with one of our experienced DUI/DWI defense attorneys, call 1-609-281-8358 or get in touch online now.