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D. Evidence Used
in Court
Even before you were signaled to stop your
vehicle, much information about you was recorded and will be
used to prosecute you in court.
Movements you make or conversations you exchange with the officer
are also recorded. In many cases, the subject is not even aware
that his conversation is recorded especially when it looks “chatty” or “is
going smoothly”. You should always be aware that records produced
are almost always used to prosecute you.
Examples of Evidence
1. How the police officer found your vehicle
You may have been stopped because of other moving violations such as speeding
or improper passing. Perhaps your vehicle did not have a license plate displayed
properly. Perhaps your car had a light that failed.
2. What you were doing in a car when the officer was approaching
your vehicle
You may be looking for your insurance card, registration card
or driver’s license.
Remember, the police feel vulnerable when they approach a strange car. Keep
your hands visible, stay seated in the car until instructed otherwise, and
make eye contact with the officer.
3. Conversation between the officer and the driver
The officer may ask you questions such as, “Do you know why I stopped you?” After
engaging in a small conversation, the officer may ask you questions such as, “Have
you been drinking?”, “Your eyes are red. Did you have a drink?” Your answer
will be recorded (either on tape, in writing, or both) and used as evidence
in court.
4. How you present registration
card, insurance card, and your driver’s license
The officer will ask the driver to present registration card,
insurance card, and driver’s license. The way you present documentation
is also monitored. If, for example, you drop one of those because
you were feeling nervous, the
officer will probably write that you dropped your documents. The officer may
write as if you were so drunk that you dropped them even though that may not
be the case. What you fail to do can often be written down as signs of intoxication.
5. Tests conducted on the road
As I explained in Did You
Do Any Test On The Road?, test results such as Preliminary
Breath Test, Horizontal
Gaze Nystagmus, One Leg
Stand, and Walk and Turn will be used as evidence of intoxication to arrest
you or to prosecute you in court. Again, there is no additional penalty to
refuse to do those tests on the road.
6. BrAC Results from the Machine
After you are taken to a local police station, you will be asked to provide
breath samples. Defenses can differ depending on which instrument you used.
When you submit breath samples and when those are accepted by the machine,
the police officer may read your reading loud, such as “0.08” or “0.11”.
Try to remember that number. If you refuse to give breath samples, you will
face an additional charge and separate penalties: you will be charged with
both DWI and Refusal.
7. Videotape
Some municipalities record DWI arrests. There may be a videotape recording
from the time you were stopped to the time you are in custody. The recording
device is often equipped in front of the police car (just like you have seen
on TV) and records up to the time of arrest. The officer often has a microphone
attached in his uniform so audio is also recorded. You should remember that
both what you do and what you say are recorded and used in court to prosecute
you. Since the videotaping usually ends when you are in custody, it stops
somewhere when you are in a police car in handcuffs. What the videotape shows
is mostly what you do and say on the road. Providing of breath samples is
often not recorded since this occurs at the police station.
8. Blood Sample
Since New Jersey is a “blood statute” state, your blood may be taken and used
in court in certain circumstances. These circumstances often include when there
is an accident and you were taken to a hospital. In such an occasion, where
there are no breath samples, only a blood sample is used to measure true BAC.
However, even if you were arrested and submitted breath samples at a police
station, you can go to a hospital and get your blood sample yourself. That
may help you in court later. Good DWI attorneys know what to use and what not
use in court to defend the client. As I explain in 10 Things
To Do When Arrested for DWI, I recommend that you go get your blood sampled
after you are released from a police station. Alcohol detection machines are
known to yield inaccurate results in certain circumstances. Your blood results
may help you to fight your case.
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