Posted on Feb 08, 2013

In order to convict you for drunk driving, the state has to have probable cause to pull you over and to arrest you.  If you suspect they lacked one or both, you can bring a motion to suppress any evidence obtained after the arrest.  But evidence and testimony presented during the motion hearing cannot be used at trial!

Yesterday, the New Jersey Appellate Court ruled that a judge in municipal court cannot convict you "solely on the basis of evidence elicited at a pre-trial [suppression] hearing". This, they said, deprives you of your right to due process.  The only exception would be if your lawyer agreed to the court's procedure.

What Did the Court Do Wrong?

In the case before the court, the defendant lost the suppression motion, as the state had shown probable cause, both for pulling over the defendant, and for arresting him. But after the motion hearing was over, the judge did not start the trial from the beginning of the case; he started it where the suppression hearing left off.

The State presented no further evidence, and the defendant moved to dismiss. The court ruled that by relying on the evidence from the suppression hearing without defense counsel consenting to the procedure, the judge deprived the defendant of due process.

Why is This Important?

This is important to bear in mind because suppression hearings often necessitate a defendant taking the stand and testifying.  Whenever this is done, the person waives his Fifth Amendment rights on cross-examination.  Therefore, if the judge cannot use the defendant's testimony against him at a later trial, this creates a "safe harbor" for people seeking to challenge the state's assertion of probable cause.

If you have been stopped in South Jersey for DWI or any other traffic offense, and think the police did not have probable cause to stop and/or arrest you, please feel free to call me at 856-432-4113 or contact me through this site to schedule a free consultation.

If you are looking for more information on New Jersey's drunk driving law, then download my free book, How Much Trouble Am I In? A Guide to New Jersey Drunk Driving Law.

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Steven J. Richardson
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Bankruptcy, Collections, Student Loan, DUI and Traffic Court attorney in Woodbury, NJ.