Common Misconceptions about a DUI Charge
Interviewer: What kind of misconceptions do people have about the DUI process when they first come to see you or talk to you?
DUI Is a Defensible Charge
James Abate: The most common misperception is that they think that “I’ve been arrested for DUI. I have no chance,” and that’s not the case. There are literally hundreds of defenses that can be pursued. We first look at how the individual was stopped by the police. What’s their probable cause for the stop? Did the officer have probable cause to get them out of the car? Did the officer do the field sobriety test correctly?
A Number of Protocols Have to Be Observed by the Police during a DUI Investigation
We work with some of the best experts in DUI in the country. From working with experts that also are training in seminars all across the country I could probably give those field sobriety tests as well if not better than most of the officers that are processing people. Oftentimes, the field sobriety tests are done poorly. Then there are a number of scientific defenses. When you get to the police station, they need to give you at a minimum a 30 minute observation.
Sometimes, we are able to get video from the police scene, which we can then evaluate ourselves and with our experts. We examine what transpired in the Alco test room. When we find out that someone has not been observed properly, we can often get them exonerated. Then on top of that, there are scientific factors, such as the two minute lock-out on the machine that needs to be adhered to.
There are calibration standards and solution changes which have to be performed properly. There are literally hundreds of factors that we look at to determine if somebody is going to be prosecuted on this or not.
While It Is Common to Experience a Sense of Hopelessness after a DUI Arrest, the Right Attorney Can Discover a Number of Factors That Could Lead to a Dismissal of the Charges
Interviewer: So people are not in fact doomed no matter how dire their circumstance seems to be, is that right?
James Abate: No, they are absolutely not doomed. It is against the law for the prosecutor to plea bargain a DUI or drug case, but when we present to them a set of facts which shows that someone wasn’t actually intoxicated, we can get these cases dismissed.
In New Jersey, Prosecutors Are Not Allowed to Offer a Plea Bargain for a DUI Charge
Interviewer: Why is the prosecutor not allowed to plea bargain?
In DUI and Drug Cases in New Jersey, the Prosecutor Can Only Downgrade the Charge if There was a Legal Defect
James Abate: Many times a plea bargain will be affected based on the relationship between the attorneys, based on the unique set of facts, based on the officer’s desire to help a defendant. In DUI and drug cases in New Jersey, that goes out the window. In DUI and drug cases in New Jersey, the prosecutor can only dismiss or downgrade an offense if he is willing to certify that there was a legal defect in the case.
The Administrative Office of the Courts looks over these. If a judge or prosecutor dismisses a case where there was not a solid legal foundation to get rid of the case, then they are going to hear about it, and they could actually be convicted of a crime.
Interviewer: That makes your job a lot harder.
James Abate: Oh, it’s incredibly difficult. If somebody thinks that they can walk into court, defend themselves, then they’re going to be really surprised at how serious these cases are taken.
Self-Representation Is Not a Viable Option to Defend a DUI Charge
Interviewer: That would be a major misconception, that you don’t need a lawyer. You could just do it yourself.
James Abate: If you don’t have a lawyer in one of these cases, you are going to be facing the most serious consequence. On a first offense, the penalty can be either three months or a year suspension. On a second offense, it’s going to be a two year suspension. On a third offense, it’s ten years and mandatory jail time.
One of the other things that people don’t realize is that in New Jersey it has been up till now a thing that people do to drive on a suspended license. If you get caught driving on the DUI revoked list, then you’re going to do mandatory jail time.
Can You Expect to Receive Mercy from the Court If You Plead Guilty to a DUI Charge?
Interviewer: What about people that say, “What if I just throw myself on the mercy of the court and plead guilty? Maybe I’ll get a less severe punishment.” Does that happen?
James Abate: No. There is no lesser degree of punishment. You have two choices in New Jersey when you’ve been arrested for DUI. You could fight or give up. That’s why when you hire a lawyer to defend you in a DUI case, some people walk in thinking they’re guaranteeing a result. It’s not.
You’re hiring someone who you trust to fight for you. If you find a lawyer who says, “I’m going to do this” or “I’m going to get you this result,” find another attorney.
At the end of the day, it’s like I said before, people want to feel that their side was heard. The first time that comes into play is when you deal with your lawyer and you find someone who you have a relationship with. You know they’re actually listening to what you’re saying and that they are going to understand your side of the story. But you also want them to talk to the court and to the prosecutor and convey what you’ve told them as defenses.
Someone may come into court and throw themselves on the mercy of the court, and what they’re actually saying as a defense, “Listen, I took a few Ambien and I didn’t even know I was behind the wheel of a car” or “I was on a low carb diet. That’s what I think did this” or “I have diabetes.”
These are all things which are legal defenses, and if they knew how to phrase what they’re saying as a defense, they might actually get off of that case.
Because of the Severity of the Penalties even for a First Offense DUI, It Is Advisable to Strenuously Defend the Charge
Interviewer: How about people that think, “Oh, you know, it’s no big deal. It’s just a first offense. I’ll just get it over with and move on with my life.” Is that accurate or is that a serious mistake?
James Abate: I think it’s a serious mistake because first of all, you’re going to be losing your license for a significant period of time. In New Jersey, you’re suspended for somewhere in the range of seven months to a year. That is the equivalent of a jail sentence because you cannot get anywhere in New Jersey if you cannot drive.
You’re going to have that on your driving record forever. You’re going to pay at least $5,000 in fines, surcharges, and different penalties. You’re going to face two days in the Intoxicated Driver Resource Center. Plus, if you are assigned the wrong counselor and he says, “I think you have a drinking problem.”
Suddenly, while the judge only gave you a seven month suspension, he starts giving you requirements to satisfy, and if you don’t satisfy them, you don’t get your license back till IDRC says you get it. So, really it’s a minimum suspension. You don’t get your license back until the Motor Vehicle Commission thinks that you’ve done everything you need to do.
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- In New Jersey, the Penalties Escalate for Subsequent DUI Offenses
- Is a Public Defender a Viable Option to Defend a DUI Charge?
- What to Avoid If You Are Facing a DUI Charge