New Jersey DWI Lawyer: Former Prosecutor
Every DWI lawyer at the Law Offices of Jonathan F. Marshall has been asked the question: how could the police arrest me and demand that I provide a breath sample without reading me my rights or without letting me speak to an attorney?
The law in New Jersey is that a person must be read his or her rights, commonly referred to Miranda warnings, once he or she is undergoing a custodial interrogation. The law does not require Miranda warning in the context of noncustodial questioning or questioning which is not interrogating in nature. Voluntary statements made by a DWI, DUI or refusal suspect are not therefore subject to Miranda nor is the prosecutor limited in his ability to utilize these types of statements. The situation enters a grey area where the DWI, DUI or refusal suspect has reason to believe that he or she is no longer free to leave and reasonably believes that he or she is in custody. The police are absolutely required to read an individual his or her rights at this point in time and any statements made by the drunk driving suspect thereafter should be inadmissible in the case.
Our DWI lawyers are often asked how it is that the police can force an individual to submit to a breath test without allowing the suspect to speak to an attorney – the suspect is obviously in custody and under arrest? This question was addressed in detail in the New Jersey Supreme Court’s opinion in Stever 107 N.J. 543 (1987), which held that a DWI, DUI or refusal suspect has no right to speak to counsel before submitting to the breathalyzer as there is no legal right to refuse the test such that submission to a breath test would result in violation of a constitutional right. For a more detailed discussion of these issues, please feel free to refer to the full opinion in Stever which is attached.
A determination as to when a drinking and driving stop has escalated to a custodial encounter can be complicated but is a pivotal question with respect to the defense of a person charged with DWI, DUI or refusal. Indeed, a violation of Miranda can result in the inadmissibility of evidence gathered following the Miranda violation, something which can prevent the State from being able to prove a New Jersey charge of driving while intoxicated, driving under the influence or refusal to submit to a breath test. The criminal defense lawyers at the Law Offices of Jonathan F. Marshall will analyze the facts and present your best Miranda defense. Please contact us for a free initial consultation.
