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What is Required in Order for Police to Arrest Someone for DWI?

If You Are Facing a DWI Charge in Stafford, Lacey, Toms River or Another Municipality in Ocean County, Call Our Dual Certified Former Driving While Intoxicated Prosecutors for Immediate Assistance

In order for a police officer to place someone under arrest for DWI, they must possess “probable cause”. This term may be familiar to someone individual reading this page but is actually more complex than you may assume. The lawyers at our firm have over 100 years of collective experience working both as prosecutors and defense lawyers, and very familiar with the legal dynamics of this term. The information that follows is intended to provide you with a working knowledge of what is needed to properly make an arrest for DWI (i.e. for probable cause to exist).

What Is Probable Cause for Purposes of a DWI Arrest?

The probable cause element actually contains several sub-elements that the State must address. Of course, the probable cause determination may be based upon the arresting officer’s perceptions, training, experience and a consideration of the totality of the circumstances. In a sense, this probable cause determination is no different from what is required to support any arrest. It is a low level of proof that has been described as a well-grounded suspicion. This “well grounded” suspicion must exist as to three issues: driving or control; place of operation; and being under the influence.

Driving or Control. N.J.S.A. 39:4-50.4a(a) specifies that the officer must have probable cause to believe that the defendant was “driving” or in “actual physical control” of a motor vehicle. The New Jersey Supreme Court has taken aant was operating would be sufficient to satisfy this element.

Place of Operation. The place of operation for which the officer must have probable cause is somewhat more circumscribed in refusal cases than drunken driving cases. Driving under the influence of drugs or alcohol is prohibited in virtually every square inch of New Jersey. This includes all roadways, highways, and public as well as private property. In the refusal context, however, the arresting officer must have probable cause to believe that the operation occurred on the public highways or quasi-public areas of the State. This is consistent with the implied consent law, which requires submission to a breath test when the operator travels over any public road, street, highway or quasi-public area in the State. Thus, the Legislature has excluded from the refusal violation drunk driving incidents that take place on purely private property. The exclusion of private property was probably written into the statute by the Legislature based upon its belief that imposing the implied consent requirement upon operators on purely private property might render the statute unconstitutional. Accordingly, a determination of probable cause to believe that the defendant operated a motor vehicle on private property while intoxicated would not satisfy this element of the refusal statute, although the defendant could still be prosecuted for drunken driving.

Under the Influence. Finally, the officer must have probable cause to believe that the operation took place while the defendant was under the influence of an intoxicating liquor, narcotic, hallucinogenic, or habit-producing drug or marijuana. Normally, an arrest for any one of the prohibited drugs would not result in a breathalyzer test as these machines are only capable of measuring blood alcohol concentrations. However, it is not unusual for the officer to have probable cause to believe that the defendant is under the influence of both drugs and alcohol simultaneously. Thus, probable cause to believe that the defendant was under the influence of either intoxicating liquor or a combination of both drugs and liquor would satisfy this element of proof.

Contact our Toms River, NJ office today and speak with an attorney about your DWI charges. The initial consultation is always provided free of charge.

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