LINDEN -- The Linden police officer who was driving in the March 20 wrong-way crash that killed two people may have had his license revoked for two years, including on the day of the crash, if the first of his two DUI charges had not been dismissed.

Linden Officer Pedro Abad, 27, a six-year veteran of the department, previously had been charged with DUI in a 2011 crash where he drove his car through the wall of a Roselle supermarket and again in 2013 when he struck a parked car in Rahway.

Abad was found guilty of DUI in the 2013 crash, but the 2011 DUI charge was dismissed after evidence was not provided to Abad's defense attorney, court records show. NJ Advance Media asked two criminal defense lawyers experienced in DUI cases to reveal the common areas lawyers look for in DUI defenses and to help understand how Abad's 2011 charge was dismissed.

No plea bargaining

"There is no plea bargaining in DUI cases, as it's strictly prohibited," said criminal defense attorney Ernesto Cerimele of Krovatin-Klingeman in Newark. "In order to work towards a resolution, a lawyer would have to either have the DUI dismissed entirely or have blood readings or other evidence dismissed in order to be convicted of a lesser charge with a shorter loss of license."

Edison criminal defense attorney William Proetta, who specializes in drunk-driving cases, said no plea bargaining means defense attorneys are usually on a search for technicalities.

"I've probably done 500 DUIs since 2010 and a lot of them get dismissed because of technicalities," he said. "That's the only way it happens since New Jersey doesn't allow plea bargaining. So we as defense attorneys have to be nit-picky and show that the state can't prove a case without a reasonable doubt."

Blood readings

In Abad's 2011 charge, he was taken to University Hospital in Newark, and a Roselle officer went to the hospital with a blood test kit and blood was drawn from him, according to the police report. His blood-alcohol content was found to be 0.176, more than double the .08 level considered legally intoxicated, according to an analysis from the New Jersey State Police Office of Forensic Sciences in Sea Girt.

"If you can find issue with the reliability of the reading that's one way to get it suppressed," Proetta said. "For a blood test, you'd basically look at the blood draw and how [the test] was performed. Was there a doctor or registered nurse who drew the blood? Did they clean the area with an iodine swab? An alcohol swab can mess up the reading. And if a case goes to trial, the prosecutor might have to produce the nurse or physician who drew the blood. If they don't show, they could have to throw out the reading."

In Abad's 2011 case, his attorney, Greggory Marootian, also requested reports on the servicing and operation of the machine that tested the blood. Proetta said discrepancies in that information could also lead to blood samples being suppressed.

"You can also request any leftover blood and have it tested independently," Proetta said. "If the state threw out the blood, that can be another way to defend, because then you can't do an independent test on it."

Proetta said the most egregious DUI cases, those involving a crash with injuries to the driver, are actually often easier to defend.

"There's no field sobriety test and there's very little interaction between the defendant and the officers," Proetta said. "So then they have to bring him to hospital and draw blood. If you can challenge the blood, then the case could get dismissed."

Warrants

On June 10, 2011, Marootian, filed a motion in Roselle Municipal Court seeking to suppress the blood sample and statement allegedly made by Abad to an emergency responder at the scene.

"The defense intends that the search and seizure were unconstitutional - without probable cause, and the statements were seized in violations of Miranda (warnings)," Marootian wrote in the motion that was in the court file for Abad's case.

"The laws have been recently changing and you now need a warrant to draw blood in New Jersey, though you didn't during the time of Abad's case," Proetta said. "The claim is it's an invasion of privacy, injecting a needle into someone's body and pulling out blood without their consent.

"Now, if a person doesn't consent or is unconscious, you need to call in a telephonic warrant. If emergency workers are asking the driver questions, without having Mirandized him, an attorney would argue those statements can't be used against him."

Proetta said judges are assigned to take warrant calls and often will grant them over the phone if an officer suspects alcohol on the driver and can show probable cause for the test.

In the wrong-way crash, the NYPD has obtained a warrant to test blood drawn from Abad at the hospital.

Breath tests and refusal

Abad twice refused breath tests during his 2013 DUI and was not given one due to his injuries in the 2011 crash.

"With the Alcotest machine, there are a lot of different requirements," Proetta said. "There's a whole slew of calibration and repair records that a defense attorney can ask to be produced. The officers have to change the mouthpiece in between each breath. They have to get two successful breath readings. They have to remove all radio devices from the room including walkie-talkies and cell phones. They have to observe the suspect for a 20-minute uninterrupted period where they can't burp or regurgitate, as that can affect the reading. And there's even more than that."

Proetta said proving all of these steps were done properly can be a challenge for the prosecution and lead to the test evidence being suppressed.

"We always tell clients not to refuse, because once you refuse it's an automatic 7-10 month loss of license. One of the only ways out is if officers read a driver the wrong statement when asking if they will take the test. The officer has to clearly ask and the driver has to clearly say 'no' -- not once but twice -- and not give an ambiguous answer like 'I don't know' or 'I want a lawyer.'"

Sometimes lawyers bring in experts, usually ex-police officers who are trained on the Alcotest, field sobriety test and police instructions, Proetta said.

"These experts come in and analyze every step of what the officer did and whether the procedures were administered properly," he said.

Missing evidence

In a Dec. 15, 2011 Roselle court hearing, Marootian had argued that he had not received all of the operating procedures for the State Police blood analysis machine, and only received six months of service reports on the machine despite the fact he requested 12 months of reports.

The Roselle prosecutor, Steven Merman, countered that he had no control over what State Police sent. The next month, on Jan. 19, 2012, Marootian again appeared in court saying he still had not received the information from State Police and had not received audio recordings from Roselle authorities. At the end of the brief, three-minute hearing, Judge Carl Marshall dropped the charge.

"Getting cases dismissed based on prosecutors not producing the discovery does happen, and it's one of the tools defense attorneys use to try to leverage cases," Proetta said. "What Marootian did in that case was a Holup motion, which says the prosecutor must produce the discovery within 30 days and failure to produce it results in a dismissal."

Responding to NJ Advance Media's report about the Roselle court hearings, a spokesman for the state Attorney General's office said the state received a list of items being sought by Marootian.

The spokesman, Paul Loriquet, said the state responded by sending 10 months of service reports on the blood analysis machine and sent all the procedures for operating the machine. Loriquet said the state provided six months of data before Abad's sample but only four months of data after the test, not the requested six months, because only four months of data was available when the request came in.

Roselle officials did not explain why Marootian did not receive the requested audio recordings.

"In most towns, the municipal court, police, and records department are in the same building," Cerimele said. "If discovery is missing, the judge can and usually does ask the prosecutor to retrieve the discovery at the hearing. If the discovery is coming from the state police, however, it is not that simple."

Cerimele, who previously served as a municipal prosecutor in East Brunswick and North Brunswick, added that "most municipal prosecutors have their own law firms and their own caseload in private practice.

"Couple this with the fact that on any given week, a municipal prosecutor may have hundreds of defendants appearing in court, it is not unusual that certain discovery can slip through the cracks, particularly if it is coming from another source, like the state police."

"The defendant is entitled to get most, if not all, of the requested discovery so that he can have every opportunity to present an effective defense," Proetta said. "If the discovery exists, they have to provide it, but some courts are more organized than others. If they're disorganized, it can be a game of telephone. Someone tells one officer, then an administrator, who tells someone else and sometimes it never gets done. Stuff just falls through the cracks."

Proetta said the burden of discovery falls on the prosecutor, but if evidence is coming from an outside agency, it can be out of prosecutors hands.

"It is pretty common that discovery gets held up and can take several months," Proetta said. "Some judges will entertain a dismissal after a certain period of time while some just keep dragging it on."

Proetta said in March he had five of eight DUI cases dismissed completely for similar issues regarding discovery.

Dashcams

Police dashcam footage, like the footage NJ Advance Media uncovered from Abad's 2013 DUI, can be strong evidence against the defendant, our experts said.

"Dashcams are a tremendous resource for municipal prosecutors," Cerimele said. "They show what really happened on the night of the arrest and often corroborate the officer's testimony as to what he/she saw and heard. On the contrary, when used by the defendant, they can help impeach an officer's testimony and/or his/her reports. But make no mistake about it, a defendant would be hard pressed to beat a DUI if the dashcam shows an inability to stand or walk."

In the dashcam video of Abad, he is seen stumbling, slurring his words, unable to complete a sobriety test and asking for "Officer Webb," an officer on the scene, saying he knows him from the academy.

Officer observation

Even if certain evidence is suppressed, a defendant can still be convicted of a DUI based on an officer's observation and testimony.

"If the officer's report says the driver reeked of alcohol and admitted to drinking several beers, that still counts," Cerimele said. "Even if the blood or Alcotest evidence is thrown out, if the officer's observations of the driver and the 'totality of the circumstances' point to a driver being intoxicated, he can still be found guilty. The harder cases to defend against are frequently those where the officer fully documents everything he heard and observed in his police report."

A fair and speedy trial

Abad's court case was ultimately dismissed in Dec. 2011, almost a year after his arrest.

"The Administrative Office of the Courts provides guidelines that say you now have to dispose of a DUI within 60 days," Proetta said. "That puts a lot of pressure on judges and prosecutors to have it worked out. The older it gets, it gives us a hammer to weigh down on judges. 'It's becoming a hardship on my client, it's inequitable to not have a fair and speedy trial, etc.'"

According to the state judiciary website data, Roselle municipal court heard 60 DUI cases from July 2010 to June 2011 and resolved 56 of them prior to trial; from July 2011 to June 2012, the court heard 44 and resolved 35 of them.

The Roselle Municipal Prosecutor, Steven Merman, had argued against dismissal in Abad's case in Dec. 2011, calling it an "extremely serious case." But when Marootian did not receive the requested evidence after the prosecutor was given another month to produce it, Judge Marshall dismissed the charges.

"This leaves this court no choice but to dismiss this case," Marshall said, according to an audio recording made available to NJ Advance Media of the Jan. 19, 2012 hearing.

Marshall, Merman and Marootian did not return requests for comment.

If Abad had been convicted in the 2011 case, he would have been subject to a mandatory two-year loss of his license upon being convicted in the 2013 case.

The Middlesex County Prosecutor's Office is investigating Abad's driving and employment record.

Jessica Remo may be reached at jremo@njadvancemedia.com. Follow her on Twitter @JessicaRemoNJ. Find NJ.com on Facebook.