Although it does not seem logical, many drunk driving arrests every year are conducted inside the home. Normally these home arrests take place either as a result of the suspected drunk driver being followed to his or her home by the police or because the drunk driver attempted to conceal their offense by leaving the scene of an accident. Whatever the underlying reason for an arrest within the home, all of these arrests are conducted by the police without an arrest warrant. Therefore, when the defendant moves to suppress the evidence, the burden will be on the State to show that the entry into the defendant’s home was predicated on one or more of the recognized exceptions to the warrant requirement. In the drunk driving context, these exceptions normally involve the following:

Consent: This consent must be given voluntarily and knowingly. The burden is on the State to show the defendant knew he had a right to refuse consent.

Hot pursuit: In Warden v. Hayden, 387 U.S. 294 (1967), the United States Supreme Court recognized the right of police, who have probable cause to believe that a crime has been committed by a fleeing suspect, to pursue that person into his or her home in order to make an arrest. The underlying offense/crime must be serious in nature. In New Jersey, drunk driving and disorderly persons offenses are not generally considered serious enough for the purpose of making a warrantless home entry during hot pursuit.

Exigent Circumstances: Police may enter a home without a warrant to make an arrest if, (1) the police have probable cause to believe that the suspect has committed a crime and (2) the police must be confronted with exigent circumstances that require the immediate entry into the home in order to prevent escape, loss of important evidence, or to prevent death or bodily injury to a person. The exigent circumstances require the police take immediate action and make it impractical to seek a warrant.

Seizure outside the home: An officer may seize a suspect, either by arrest or detention, outside the suspect’s home. If the suspect attempts, thereafter, to enter his own home, the police may follow the suspect into the home for the purpose of continuing the seizure or completing the arrest.

I have to say that my surprise with Court rulings gets less and less as I close in on twenty years of defense work in NJ.  Nonetheless, I had to gasp for a second when I read the release associated with a Mercer County Superior Court judge’s decision in State v. Rastogi.  In Rastogi, an individual was accused of drunk driving but there was apparently a significant issue concerning whether or not there was probable cause for the associated stop.  The accused lost his motion to invalidate the stop in Municipal Court and appealed the ruling.  While the appeal was pending, the Mercer County Prosecutor’s Office decided that the stop was too risky to continue to fight over and proposed a dismissal of the dwi and entry of a plea to reckless driving. The Law Division refused to accept the plea, finding that it violated the ruling prohibiting plea bargaining in DWI cases.

The prohibition in question applies to “plea bargaining” but certainly does not prohibit the outcome proposed in Rastogi in my view  If a prosecutor concludes that he or she cannot prove a dwi case because of a bona fide issue(s), there is nothing to prohibit dismissal of the dwi and acceptance of a plea to some other offense. It seems to me that this was exactly what was being proposed in Rastogi.

We like to report on particularly gratifying results reached on behalf of our DWI clients.  Last Thursday was especially pleasing as I was able to achieve some great results in two Monmouth County DWI cases.

In the first case, a man was charged with his fourth (4) DWI, along with a refusal in Red Bank, NJ.  The gentlemen was not entitled to a stepdown (i.e. drop off of any of the convictions) and was therefore facing six months in jail if found guilty of DWI.  Our Monmouth County DWI defense attorneys worked significantly hard to attack the DWI charge based on lack of proper administration of Field Sobriety Tests. The arresting officer had inadequate training in Field Sobriety Testing and his superior, who performed the HGN test, lacked an up-to-date certification to support his administration of the test.  Our efforts proved successful and we were able to avoid a DWI conviction in this Monmouth County Case.  Our client avoided jail time altogether.

In the second case, a Rumson stockbroker was charged with his First DWI in Fair Haven.  His breath test readings exceeded .10 thereby exposing him to a license suspension of seven (7) months or more.  We explored numerous issues concerning admissibility of the breath test results, including the twenty minute issue.  In this regard, CAD (computer assisted dispatch) reports were demanded and obtained which pinpointed the time that the arresting officer brought our ciient into the station. When this time was compared to the time of the breath test, we were able to raise a viable twenty minute issue.  While the municipal prosecutor, Hank Gilbertson, also fought hard on this issue, we were ultimately able to convince the Judge that this Monmouth County DWI defendant should not be bound by the breathalyzer readings. The Judge agreed with our position and ultimately suppressed the readings thereby allowing us to achieve a first tier result and a limited suspension of three months for our client.  The client was extremely pleased.

We are fortunate enough to be exposed to many DWI fact patterns and so too, opportunities to refine our identification of bona fide issues.  The identification of these issues is imperative to our defense of those charged with DWI in NJ as prosecutors and Courts are strictly prohibited from downgrading and/or dismissing DWI tickets absence proper legal basis.