Kevin Leckerman, New Jersey DWI Attorney (Interview Transcript):

 

Rich Jacobs of myDUIAttorney.org sits down with Kevin Leckerman, a New Jersey DWI Lawyer about how he approaches a DWI case, why he's different from other New Jersey DWI Attorneys, and more. This is informative reading for anyone facing a NJ (New Jersey) DWI charge.

RJ: Mr. Leckerman specializes in DWI law in New Jersey, and has agreed to take some time today to have an interview with me. I appreciate you being here with me Mr. Leckerman, thank you. Without delay, let’s get to the questions. The first question I have is that it seems like most people feel a DWI charge cannot be fought and won. Is that true?

 

KL: No not at all. Actually, there are many ways to fight a DWI charge. In any DWI prosecution, especially in New Jersey, they are going to be utilizing a number of variables in the prosecution. One would be field sobriety tests. Second would the breath-testing unit which they are utilizing now in New Jersey. And if there’s an accident that’s involved, typically they are going to be taking blood samples, or perhaps urine samples.

 

So, from the beginning of any case, you want to look at a number of issues. And one certainly would be with the field sobriety tests, and then go into the scientific testing that’s taken place with your client. When a client calls me I go through a whole series of questions spending a reasonable amount of time discussing not only the case itself, but we go into a lot of details concerning that person’s past, so in my process of finding out about the case and my client I want to delve into a number of issues not only with the investigation, but the issues that could have influenced the decision of the police officer, in a way that if the court or the prosecutor – prior to actually taking the case to court - knows the full the amount of information about my client and that in many cases can be persuasive in deciding whether or not the prosecution wants to take the case past the initial charging stages, and then take the case to trial. Utilizing this information, I try to get the prosecutor to reevaluate the case and try to get the DWI case dismissed.

 

RJ: That’s very interesting. So your first focus of attack is on the prosecutor before you even get to charge the client, or whether they’re going to take him to trial. You’re trying to stop the whole process there?

 

KL: Well sometimes. Usually in New Jersey, when I’m called, it’s because the person has already been taken in and charged and has a court date in a couple of days or so. On occasion, there is time between the actual incident and the decision to charge the client. For the most part, I am dealing with a case where the charge has already been filed and I’m trying to then put together an attack essentially against the prosecutor’s case before we even get to the first court date.

 

So you mentioned the word attack, and that’s essentially how I approach these DWI cases, I don’t sit back and defend a DWI charge, because frankly in New Jersey you’re not going to get any where if you’re just sitting back and waiting for the prosecutor to hand you a deal. In fact, in New Jersey they don’t give you deals, they are not supposed to give you deals.

 

It’s prohibited for a prosecutor to negotiate a DWI charge, so therefore the primary goal of the NJ DWI goal attorney, and my primary objective is to attack that case that they put together which is generally done by delving into the client’s past, examining the field sobriety tests, and the driver behavior that was noted, and the scientific tests, and so they’re not really digging into anything more than that.

 

My approach is to get from my client as much information as possible. Go beyond just finding out whether or not the police did the field sobriety properly and followed the correct procedures for breath or blood testing. That’s absolutely essential in any New Jersey DWI attack, but what I really want to know when I’m talking to a client, is to find out the past history of that person, for example, if that person has any physical conditions, whether they be acute at the time, or chronic conditions that could have affected their ability to operate the car, ability to do these balance tests or field sobriety tests, ability to blow into the machine, and give an adequate breath sample.

 

Sometimes people are charged with refusal because the machine didn’t get a required, sufficient breath sample, and there could be physiological conditions that could have prohibited that person from giving an adequate breath sample, and I want to find that information out. There could be interference with the machine itself, and that could be due to a number of gastro-intestinal issues as well. Those are just a few examples of what I want to know when I’m initially interviewing and building a case.

 

RJ: It sounds like you take a lot of time up front and a lot of care to really get to all the details possible, that’s great – very good to hear. My next question, which you’ve already covered part of is, how do you initially approach each DWI case?

 

KL: Well, aside from what I mentioned, I’m also looking into the certifications for the officers concerning the field sobriety tests. So for example, in NEW JERSEY, they are typically using three types of field sobriety tests. Those are known as the standardized field sobriety tests, the one leg stand, the walk-and-turn, and the horizontal gaze nystagmus test.

 

Well, in NEW JERSEY, the horizontal gaze nystagmus test, the results of that are not allowed into evidence for the prosecution, however, they can be used for probable cause. So when I’m trying to build an attack, of course I want to find out information regarding the qualifications of the officer who did the initial testing, because that is going to be a large foundation essentially that the prosecution uses to form their probable cause direct and then go onto the so-called more reliable scientific evidence.

 

So if you can really delve into the qualifications of that officer and the problems that typically occur with the administration of field sobriety tests, then that’s going to help potentially help getting rid of an entire charge even on a probable cause challenge, and if not, through probable cause, at least sufficiently weakening the prosecution’s case early on.

 

Another issue as I mentioned before that I would look into is, does the client have any physical problems that could have resulted in an artificially inflated breath-testing result. So, I’m looking into gastro-intestinal problems, I’m looking into issues with mental health problems, I’m looking into whether or not there were objects that the person had in his or her mouth, mints or gum for example, within a 20 minute period prior to giving a first breath test. So if there were any of these types of issues, I can then automatically mention to my client, “Hey, we have something to work with here”, and we can essentially fight this case and can perhaps have an excellent chance of persuading the prosecutor to dismiss based on the evidence that we’re presenting, or at least if we have to take the matter to trial, then we can present a very strong defense.

 

RJ: What are some of the common problems that you are finding in the DWI cases that you handle?

 

KL: Well, with the field sobriety testing, once I find out the qualifications of the officer we are also going to be getting information, whether it be from a video tape recording of the event itself, or at least information in the police officer’s report considering how the tests were administered, and the results of those tests.

 

Oftentimes, I’m going to find in a video tape replay and/or in an officer’s report review that the officer failed to give adequate instructions to the subject that was being investigated. There are prescribed, standardized instructions for administering field sobriety tests, so if those standardized instructions aren’t given, then the standardization aspect of the field sobriety test is destroyed essentially. Those tests are supposedly scientifically studied, and when I say supposedly, they were studied over several decades by the National Highway Traffic Safety Administration in order to determine whether or not field sobriety tests have a certain degree of reliability. With those studies they found that, essentially the three that I mentioned before (the one leg stand, the walk-and-turn and the horizontal gaze nystagmus), when administered altogether do give a high degree of reliability for the police officer to determine whether or not someone is intoxicated.

 

So, the tests themselves are not utilized to determine intoxication, they are simply to give the officer the tools to arrest. So according to the National Highway Traffic Safety Administration, if the tests are administered in the standardized fashion, there would be a certain degree of scientific reliability. However, if they are not, then the degree of reliability is unknown and doesn’t matter. So once I find those factors out through my review, then I can determine frankly whether the field sobriety tests have any validity whatsoever.

 

RJ: So what kind of challenges can be made regarding the scientific testing, such as breath and blood tests?

 

KL: Well with breath tests, once I look into my client’s background and medical history, there could be issues which as I said could have caused an artificial inflation of the breath-testing result. So if there was a certain physiological condition that may have caused what is called “mouth-alcohol” to occur during the breath-testing process, then that’s going to affect the final result.

 

Regarding blood testing, there are a number of issues concerning the collection of the blood specimen, storage of that blood specimen, there should also be very detailed documentation regarding the chain of custody, so who actually possessed that blood specimen and where they stored it, what was the temperature of the storage unit in which the specimen was placed, how long was it stored there, where was it taken from that point, how long was it taken out of refrigeration storage.

 

And once it gets to the lab itself, there are a number of issues that I’m going to be looking at during discover concerning what are called chronatigrams (sp?), which are provided routinely during and after blood-testing, and that documentation in addition to a number of other documents that I ask for would be examined, not only by me, but I would have a pharmacologist or toxicologist take a look at those items, to determine if there are any problems with the actual blood testing.

 

RJ: That’s pretty detailed investigation! Another question, what sets you apart from other DWI attorneys who handle these kind of cases?

 

KL: Well, as I think I tried to impart to you at the beginning of this interview, is that I do take a great deal of time to learn as much about my client as possible. What I find to be the most successful method for defending the client and attacking the prosecution’s case, is not just to bring a client in and have a client’s name on a ledger and basically look at the client as that.

 

Each client I treat as a human being, each client I know has a lot at stake, I understand their very precarious position because of this charge, and for these reasons I want to make sure that I find out as much about my client as possible, so not only is there an adequate comfort level between my client and myself, but obviously I want to be able to create as many different defenses as possible. As well, my philosophy is, once I start a case, I certainly don’t hand that case off to a different associate in the firm, or someone else to handle that matter. I’m taking that case from beginning to end.

 

There are various methods of practice at some law firms that have a client that comes in on an intake, you see one attorney that handles the intake interview, and then once the client is about to go to court, gets a call from a different attorney saying “Hey, listen, I’ve reviewed your case, and I’m going to be in court with you tomorrow.” Well that’s going to create a lot of confusion, a lot of anxiety. My primary job is obviously to get rid of the New Jersey DWI, but secondary job is to make the process as comfortable as possible.

 

I want to make sure that every client understands the process and is educated about the process because, frankly, when anyone goes through a very difficult situation like this, they want to find out as much information as possible. It’s not like the old days where people would say, “OK, I’m going to leave it in your hands to take care of”. These days, people really are interested in finding out as much information as possible about the process, and fortunately, with the internet, there’s a lot of available information for people who want to get it for those that are motivated. With my practice, it’s not only getting to know the client as best as possible, which I find is the greatest way to get success in these cases, but the factor that I really put a lot of weight into, is making sure that the way that I practice law is a little different to the ways other practice law is that I’m also very confident within myself. Not only with the new case law that may come out regarding DWI, but I’m also talking about the new scientific discoveries that are being published every day.

 

So getting the scientific studies, reading them, in regard to breath, blood or urine tests. And that’s not only for alcohol but for drugs as well. Because when we’re talking about DWI defense, alcohol intoxication defense is in a whole different category from drug intoxication defense because these are two different realms, two different methods of testing for the most part, and you really have to really be aware of not only the law behind DWI defense, but the science behind. And without educating yourself in the myriad areas of science that are involved with DWI defense, frankly you are not giving your client the service that he or she deserves.

 

RJ: Thanks, Mr. Leckerman, I appreciate your time and care in answering these questions. That’s the end of the interview.

 

Watch Kevin Leckerman's Interview HERE >>