Appellate Court Considers Whether Judges May Consider Acquitted Conduct as Evidence in New Jersey DWI Case

drive thruThe state can offer various forms of evidence to prove that a defendant charged with driving while intoxicated (DWI) was in fact impaired by alcohol or drugs, including a blood alcohol content (BAC) of 0.08 percent or greater. New Jersey law assists police and prosecutors by making refusal to submit a breath sample for BAC testing a separate offense. In an appeal of a DWI conviction, a defendant raised a question about whether a court can consider evidence related to a refusal charge that resulted in an acquittal. The defendant in State v. Pryslak had been acquitted of refusal, but the Law Division had considered evidence related to that case as “evidence of consciousness of guilt” of the DWI charge.

Even without BAC evidence, prosecutors can establish impairment through other means, such as witness testimony. This often involves having an arresting officer testify about their observations at the time of the arrest or shortly afterwards. If a defendant was driving erratically and exhibited outward signs of intoxication when questioned by an officer, this can serve as evidence of impairment. Since police are trained to identify intoxicated people, courts tend to credit their testimony more than that of other individuals who might have witnessed a person driving or behaving in a way that suggested intoxication.

The offense of refusal to submit to breath testing has different elements and therefore requires different types of evidence. The law allows a municipal judge to convict a defendant of refusal even if they did not outright refuse to provide a breath sample. Police must follow specific procedures, outlined by statute and the New Jersey Supreme Court’s decision in State v. Chun. This includes a 20-minute observation period prior to administering a breath test, during which time the defendant cannot place anything in their mouth. Evidence that a defendant refused or intentionally failed to follow police instructions, such as by repeatedly interfering with the observation period or failing to blow into the testing device properly, could serve as evidence of guilt of refusal.

The defendant in Pryslak was arrested after a fast-food restaurant employee called the police to report a customer at the drive-thru who appeared intoxicated. The officers testified at trial that they observed multiple signs of intoxication, including poor performance on field sobriety tests. At the police station, the defendant failed to provide a sufficient breath sample. An officer testified that the defendant placed a coin in his mouth during the 20-minute observation period, requiring them to start over.

The municipal court convicted the defendant of DWI but acquitted him of refusal. The Law Division also convicted the defendant after a trial de novo but added that the defendant’s actions at the station regarding the breath test were “evidence of consciousness of guilt” of DWI. On appeal to the Appellate Division, the defendant argued that this violated Rule 303 of the New Jersey Rules of Evidence, which deals with presumptions against a defendant. Since he had been acquitted of refusal, he argued that the Law Division could not consider that particular evidence against him. The Appellate Division affirmed the conviction, finding that this evidence was still relevant to the DWI case despite the refusal acquittal.

New Jersey DWI attorney Evan Levow has advocated for the rights of defendants in the courts of this state for more than 20 years. He can guide you through the New Jersey municipal court system and help you understand your rights. Contact us today online or at (877) 593-1717 to schedule a free and confidential consultation to see how we can help you.

More Blog Posts:

Can a New Jersey DWI Defendant Claim “Insanity” in Court? New Jersey DWI Attorney Blog, February 13, 2017

BAC of 0.08 Percent or Higher Not Always Necessary to Prove DWI, New Jersey Court Rules, New Jersey DWI Attorney Blog, November 8, 2016

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

Photo credit: Dean Hochman [CC BY 2.0], via Flickr.