BAC of 0.08 Percent or Higher Not Always Necessary to Prove DWI, New Jersey Court Rules

New Jersey’s driving while intoxicated (DWI) laws allow prosecutors to prove impairment by alcohol in several ways. Evidence of blood alcohol content (BAC), determined by a breath, blood, or urine test, is a well-known method. Prosecutors may also offer witness testimony, particularly testimony by an arresting officer and others who observed the defendant at the time of the arrest. The New Jersey Supreme Court has held that no particular expertise is required to form an opinion, which would be admissible in court, that a person is intoxicated based on observation of the person. The New Jersey Appellate Division recently ruled in State v. Colabella that a BAC below the legal limit for DWI did not supersede officer testimony regarding a defendant’s intoxication in a DWI case. Even though the person’s BAC was not high enough to create a presumption of impairment, the court accepted other evidence.

A BAC of 0.08 percent creates a presumption of intoxication under New Jersey law. This BAC amount is commonly known as the “legal limit” for DWI, and a DWI offense based on BAC evidence is often known as “per se DWI.” New Jersey law makes it a separate offense to refuse to submit to breath testing. This indicates how important the state considers BAC evidence, but it is not absolutely required for a DWI conviction. The DWI statute defines the offense as driving “while under the influence of intoxicating liquor” or other substances, or with a BAC of 0.08 or higher. Prosecutors can introduce evidence that someone was “under the influence” through officer testimony about how the defendant was driving, their demeanor and appearance, the odor of alcohol, and their performance on field sobriety tests (FSTs).

The defendant in Colabella challenged a DWI conviction when BAC test results showed a BAC below the legal limit. According to the Appellate Division’s opinion, an officer pulled the defendant over for an illegal turn and an expired inspection sticker. The officer testified at trial that he detected a “strong odor of alcohol” coming from the vehicle. He also stated that the defendant had “slow and slurred” speech and “blood shot and watery” eyes, all indicators of alcohol impairment. The defendant reportedly admitted to consuming one beer and some ibuprofen.

The officer claimed that the defendant stumbled when exiting the vehicle and needed assistance so that he “did not fall over.” The defendant said he was “unable to properly perform physical tests” due to “nerve damage.” He performed poorly on FSTs, and a breath test showed a BAC of 0.06 percent. A drug recognition expert (DRE) with the police department testified that a BAC of 0.06 percent was consistent with more than one beer. The municipal judge found the police witnesses credible and convicted the defendant of DWI.

After the Law Division also convicted the defendant, he appealed to the Appellate Division, arguing that the evidence, particularly his 0.06 BAC, did not support a DWI conviction. The court cited two New Jersey Supreme Court cases that allow layperson testimony regarding whether a person is intoxicated, 1971’s State v. Smith and 2006’s State v. Bealor. It found that the weight of the officer’s testimony was enough to overcome the lack of BAC evidence, and it affirmed the verdict.

If you are facing charges of alleged DWI in a New Jersey court, you should consult with an experienced and knowledgeable DWI attorney. Evan Levow can guide you through the municipal court process and defend your rights. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation to discuss your case.

More Blog Posts:

Defendant in DWI Case Has Burden of Proving Inability to Provide Breath Sample, According to New Jersey Court, New Jersey DWI Attorney Blog, August 6, 2016

U.S. Supreme Court to Rule on Constitutionality of Criminal Refusal Statutes, New Jersey DWI Attorney Blog, May 25, 2016

Alcotest Documentation Was Sufficient in DWI Case, New Jersey Appellate Court Rules, New Jersey DWI Attorney Blog, April 4, 2016