Any New Jersey Criminal Defense Attorney who practices regularly in our State’s Municipal Courts handles clients accused of DWI (Driving While Intoxicated/Driving Under The Influence). While DWI clients charged with a second or third offense frequently decide to proceed to trial because of the stakes involved, the first offense cases – which account for the majority of DWI matters – frequently end with guilty pleas, and the attorney’s function is simply to make sure that only the mandatory minimums penalties are imposed.
I recently had a first-offense DWI that was far from the norm. First, the case did not involve alcohol. My client was taking prescribed medication, had a bad reaction to it while driving, and was pulled over, tested and charged. The breathalyzer reading was zero. Her charge was based on officer observations and her failure to pass the field sobriety tests. Because the case involved drugs as opposed to alcohol, the State relied heavily on a “Drug Recognition Expert”. Simply put, this is an officer who has been trained to determine whether someone is drug-impaired based on their observations of the subject’s behavior and mannerisms. The Drug Recognition Expert prepared an expert report that was included in the discovery. The case involved State troopers, as opposed to local police officers. (For those of you who are wondering, my client’s doctor specifically told her that the medication would have no effect on her ability to drive.)
The discovery read the way DWI discovery typically reads, and included all of the sentences and phrases that attorneys doing this work can eventually recite verbatim. But this turned out to be the root of the State’s problem in this case. For purposes of this article, my client’s name was Mr. Jones. The narrative prepared by the arresting Trooper in my client’s case referred to Mr. Smith, as well as my client. The Drug Recognition Expert’s report referred to Mrs. White, as well as my client. It became clear after reviewing the discovery that the officers who worked on this case and prepared the paperwork simply did a “cut and paste” from reports prepared in other cases, but failed to proofread their work and change all of the names so that the documentation referred only to my client. Using these errors, I was able to negotiate a plea to a reduced charge which carried a must shorter suspension and sharply reduced fines and penalties.
Regardless of what one may feel personally about DWI, these defendants are still entitled to the same procedural protections as anyone else. Further, the State has the same burden it always has, and must be held to that burden. There is something of a tendency to assume a DWI is somewhat hopeless, and that there is relatively little that the attorney can do for the client. But my experience in this matter reveals that this is not always true. A quick reading of discovery can cause mistakes to be missed, whereas a careful reading of the discovery may disclose flaws that defense counsel can use to their client’s advantage. This is true in every criminal matter, and in every motor vehicle offense.
And, by the way, when the Municipal Court judge hearing my case learned about the errors, he instructed the prosecutor to provide him with copies of the reports. I would really have enjoyed hearing the discussion he undoubtedly had with the superiors of the officers involved in this matter.