New Jersey DWI Defendant Challenges Alcotest Results and Officer’s Observations as Evidence at Trial

The New Jersey statute defining the motor vehicle offense of driving while intoxicated (DWI) gives prosecutors several options for proving a defendant’s guilt. They can introduce evidence of blood alcohol content (BAC) above the “legal limit” established by law, and they can also introduce other evidence to show that a driver was impaired by alcohol or drugs. A recent decision from the New Jersey Superior Court, Appellate Division considered a defendant’s challenge to the sufficiency of the evidence introduced against him at trial. The decision in a recent case addressed both BAC evidence and observational evidence from police officers who were present at the time of the defendant’s arrest.

A BAC of at least 0.08 percent creates a legal presumption that a driver was impaired within the meaning of the DWI statute. Police use a device known as the Alcotest to collect breath samples in order to determine BAC. A 2008 decision by the New Jersey Supreme Court, State v. Chun, established specific procedures that police must follow prior to and during the collection of breath samples with an Alcotest. A failure to follow these procedures by police can result in the suppression of BAC evidence at trial, possibly followed by the dismissal of the DWI charges. At the same time, a failure to follow police instructions by a driver can result in a charge of refusal to submit to breath testing.

Even if a DWI suspect refuses to submit breath samples, the state can introduce testimony by the arresting officer, the officer who administered the Alcotest, and other witnesses to establish that a defendant was “under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug.” This might include observations of a defendant’s physical appearance and behavior, such as “glassy eyes” or “slurred speech.” An officer can testify about detecting the odor of alcohol, as well as a defendant’s performance, or lack thereof, on field sobriety tests.

The arresting officer in this case testified that he pulled the defendant’s vehicle over after he saw him cross a double-yellow line and swerve back into his own lane twice. The officer stated that the defendant had “watery eyes and slow, slurred, deliberate manner of speech.” He stated that the defendant did poorly on field sobriety tests, after which he placed him under arrest. The same officer administered the Alcotest at the police station. After two aborted tests, the third test showed a BAC of 0.09 percent.

The municipal court judge found the defendant guilty of DWI based on BAC and the officer’s observational testimony. The judge also noted that the field sobriety tests were “borderline” and that the verdict likely would have been not guilty had the state only offered evidence of the field sobriety tests.

On appeal, the defendant challenged the admissibility of the BAC evidence, claiming that the officer did not follow the Chun procedures. He also challenged the sufficiency of the observational evidence. The Law Division and the Appellate Division affirmed the conviction. Both courts based their rulings in part on a New Jersey Supreme Court decision from 2004, State v. Kashi, which held that DWI in New Jersey “is a unified offense which permits a defendant to be found guilty on an alternative basis.” They accepted the municipal court’s finding that the weight of the evidence pointed toward a guilty verdict, despite concerns with individual pieces of evidence.

DWI attorney Evan M. Levow has dedicated his practice to defending people charged with alleged DWI in New Jersey. To schedule a free and confidential consultation with a member of our knowledgeable and experienced team, contact us today online or at (877) 593-1717.

More Blog Posts:

Accuracy of Alcotest Devices in New Jersey DWI Cases Questioned in Lawsuit, New Jersey DWI Attorney Blog, December 14, 2016

Defendant in New Jersey DWI Case Challenges Admissibility of Alcotest Results, Claiming Spoliation of Evidence, New Jersey DWI Attorney Blog, August 22, 2016

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

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