Interviewer: Can you share a case history where the odds were really stacked against your client but yet you were able to prevail?
Multiple DWI Offenses with High BAC
Lauren Scardella: We had a case with a client who was arrested for his third offense. The video in the third offense wasn’t great. It wasn’t terrible. We couldn’t see a lot of what he was doing on the video.
His BAC was over a .10. Through our diligence and knowledge of the Alcotest® and the defenses relating to the Alcotest® we were able to get the reading thrown out. Because it was a third offense, that wasn’t enough. That wasn’t going to get him out from under the charge, because the State could still proceed on the observations case.
Do the Results Count as Evidence if the Field Sobriety Tests Are Not Administered in the Required Standardized Manner?
We went to trial and the officer testified truthfully and we had an expert in the field sobriety testing testify. The judge ultimately found that the way that the tests were administered was not in accordance with the manual and they weren’t administered in the standardized fashion. Thus, they couldn’t be relied on.
The driving conduct wasn’t that bad. It didn’t support the DWI charge, and that the admission of alcohol consumption when coupled with these few other factors just wasn’t enough. We won that case. That was something that we were very proud of, because winning that case kept a family man with a wife and child out of jail. To his credit, he also went to rehab and got treatment for his alcoholism and is still sober several years later.
Some Cases Can Be Time-Intensive to Defend
The State couldn’t prove the case. We spent a lot of time preparing. At first blush it looked like they had a really good case against him but they didn’t when all was said and done. They didn’t have the proof beyond a reasonable doubt.
After a DWI Arrest and Undergoing the Alcotest®, Many People Are Not Informed of the Results
Interviewer: What would you say in a DWI case are the things that make people feel hopeless? Is it the field sobriety, is it the breath test? Is it just the fact that they’ve been arrested?
Lauren Scardella: I think it’s probably just the fact that they’ve been arrested. It depends. They’re not always told what their BAC is. Many times we get phone calls from potential clients. When I asked them if they blew into the Alcotest® and what their reading was they say, “Yes, I underwent the test but they didn’t tell me what my reading was.”
They’ll say something like, “It probably wasn’t very good.”
New Jersey State Police Do Not Administer the Preliminary, Roadside Breath Test
Interviewer: Do the police give a preliminary breath test at the roadside, and do you think people are confusing that with the test at the station if they give it?
Lauren Scardella: Some departments do give the preliminary breath test on the roadside, some departments don’t. The New Jersey State Police don’t use the roadside breath testers. Sometimes people do confuse that with the Alcotest®. They don’t understand why they’ve been given a test on the road and then given another test at the station.
Use of the Preliminary Breath Test (PBT) Is Typically to Confirm the Police Officer Suspicion That the Driver Is Intoxicated
Most of the time the police tell the subject or the defendant that the PBT on the roadside doesn’t give them a reading; it just tests for the presence of alcohol, which is not true. It does give them a reading but it’s not calibrated and it’s not admissible. The police generally don’t even put the PBT reading into their reports.
I think the police tend to use it as a way to check whether or not they’re right in their feeling that somebody has performed poorly on the sobriety tests because of intoxication.
The Result of the PBT Alone Does Not Warrant an Arrest for DWI
Interviewer: Essentially that gives them probable cause to arrest you, right?
Lauren Scardella: They need to have more than just a PBT because it’s not admissible and so they wouldn’t be able to use that just by itself as probable cause. They can’t just go up to somebody’s window and say have you had anything to drink and then give them the PBT and say, okay, we’re going in.