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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 117370
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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My son was arrested for DWI in NJ and from what I find out

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My son was arrested for DWI in NJ and from what I find out the Officer did not follow Police procedures. He was originally stopped for going straight when he was in the lane for left turn only.
1) The Officer searched without permission his car based upon the eye test which is not admissible in NJ court.
2)My son passed the first breathalyzer test in town and was held two hours before being taken to the State Police where he took another test and passed. By the way my son gave the Officer directions the State Police building in town.
3) There was no reading on the tests and the Officer said "we will be here all night", my son told him he wasn't refusing the test and the Officer said "it won't be held against him".
4) My son was put back in the police car, given tickets that were folded together, dropped off at another part of town.
The officer new his address but didn't take him home or back to the station. After my son reached his friends house he seen that the Officer lied to him, gave him two tickets for refusing the breath test and DWI. The Officer never told him what the tickets were for when he handed them to him..
Now if my son gets a pea with his Lawyer can he still have the County Prosecutor file charges on the Police Officer, and then sue him in civil court. This seems like the Officer tried to cover himself after he arrested my son and could not find anything to validate what he did. Do NJ courts always side with the Police Officer? My son's Lawyer has already requested the Discovery and so far the only thing against him is the Officer's word, which his actions and what he told my son contradict themselves. Please if you do not know NJ law do not respond.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

1) Under NJ law, the horizontal gaze nysthagmus test (HGN) can be used to develop probable cause for intoxication. According to the NJ courts, the results of the HGN may be excluded from evidence where it is shown that the test was not performed according to standards accepted by NHTSA. A health condition affecting the eyes such as an astigmatism or lazy eye can cause the results to be inaccurate. The NJ courts have held that the HGN test is based on the observation of three different physical reactions that occur when a person is under the influence of alcohol: (1) the inability of a person to follow, visually, in a smooth way, an object that is moved laterally in front of the person's eyes; (2) the inability to retain focus and the likelihood of jerking of the eyeball when a person has moved his or her eye to the extreme range of peripheral vision; and (3) the reported observation that this “jerking” of the eyeball begins before the eye has moved 45 degrees from forward gaze if the individual's BAC [(Blood Alcohol Content)] is .10 [percent] or higher. See: State v. Doriguzzi, 334 N.J. Super. 530, 536 (App.Div. 2000), because you cannot make a blanket statement that it is not admissible in court, since the NJ courts have not said that, as you can see from the case law, they say it has to be demonstrated it was properly performed and thus, it is something that your son's attorney can challenge the case on.

2) Giving multiple breath tests is also grounds to challenge the arrest based on the continued testing and this is something els your attorney can raise.

3) If there are no test readings, it would be a highly difficult case for the prosecutor to win as there is really no proof he was legally intoxicated.

4) Your son needs to make sure his attorney files an administrative driver's license revocation appeal because of the alleged refusal to take the test, which is separate from the criminal case. He must do both.

If your son pleas to anything in this case, he cannot pursue any charges or anything against the officer. Furthermore, bringing suit against officers is quite difficult for false arrest, since officers are covered by what is called qualified immunity. If your son's attorney can prove the officer did not comply with the law, this would be an exception to the qualified immunity and in that case he could potentially sue the officer for false arrest, but he cannot take a plea to anything in order to do so, he would have to be found not guilty.

If your son is able to go to trial and get found not guilty or is able to get the charges dismissed based on the grounds mentioned above, then it is possible that your son could indeed pursue the false arrest case against the officer.

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Customer: replied 3 years ago.

Thank you for your quick response. Do the courts always take the side of the Officer? If yes then there is no point in fighting a case that he will only lose. That's all there seems to be, the Officer's word on the eye test

Thank you for your response.

The courts do not always take the side of the officer unless there is simply no evidence at all to refute what the officer says other than the defendant's statements. You seem to indicate your son has some basis to challenge this matter, so his attorney needs to evaluate that evidence carefully to determine your son's chances.

If your son's attorney can challenge the HGN test and get it thrown out and there are no breath readings, then it is a good chance your son's attorney could win the case, but again that is for his attorney to evaluate here. Your son's attorney can challenge how the HGN was performed though and if this is a new officer, the officer's experience and proper performance of the test is subject to challenge.
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