Defendant in New Jersey DWI Case Challenges Conviction of “Per Se” DWI

Ice waterNew Jersey law allows prosecutors to offer evidence of driving while intoxicated (DWI) in two ways. One way relies on evidence like testimony by police officers about outward signs of intoxication, including appearance and behavior. The second method involves evidence that a defendant’s blood alcohol content (BAC) was above a certain level. This is often known as “per se” DWI because the BAC evidence creates a presumption that the defendant was impaired by alcohol. A DWI defense strategy should take both methods of proving DWI into consideration. Defending against a per se DWI charge in New Jersey often involves challenging police equipment more than police witnesses. The Appellate Division recently considered an appeal of a per se DWI conviction in State v. Page.

The DWI statute defines the offense as driving either “while under the the influence” of alcohol or drugs or with a BAC of at least 0.08 percent. The latter definition constitutes per se DWI. It does not necessarily require any evidence other than the defendant’s actual or imminent operation of a motor vehicle and the defendant’s BAC at or near that time. It is possible to obtain an acquittal or dismissal in a DWI case even with evidence of a BAC over 0.08 percent. It is also possible, however, for the state to obtain a conviction without BAC evidence or with a BAC of less than 0.08 percent.

New Jersey courts have established a variety of procedures and protocols that police must follow in an effort to ensure the accuracy of BAC test results. Police in this state commonly use a device known as the Alcotest to measure BAC. The defendant must provide a breath sample by blowing into a tube. The device then measures the alcohol content of the sample. The Alcotest requires regular maintenance and careful calibration, and it can produce inaccurate results without either of these. A 2008 decision by the New Jersey Supreme Court, State v. Chun, establishes maintenance and record-keeping protocols that police must follow for Alcotest results to be admissible in court. It also requires police to observe a DWI suspect for 20 minutes before administering the test.

The timing of breath, blood, or urine tests is also important, since the human body can metabolize alcohol rather quickly. The New Jersey Supreme Court ruled in State v. Tischio in 1987 that police must administer a test to determine BAC “within a reasonable time” after the defendant’s arrest. It did not define a specific period of time, but a 1989 Appellate Division decision, State v. Samarel, found that a delay of four-and-one-half hours between the arrest and the test was reasonable.

The defendant in Page was arrested after a police officer reportedly observed him driving erratically. Because of equipment failures, police did not successfully collect a breath sample for about three hours after his arrest. The Alcotest device showed a BAC of 0.15 percent. The prosecution offered both eyewitness testimony and BAC evidence, and the defendant was convicted. He appealed, in part, on the ground that police failed to follow the procedures established by Chun and Tischio. The Appellate Division reviewed the relevant procedures but ultimately affirmed the conviction.

Defending against a DWI charge in New Jersey requires careful and thorough preparation. With more than 20 years of experience, DWI attorney Evan Levow can help you prepare a strong defense for your particular case. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation with a member of our team.

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

Photo credit: Jon Sullivan [Public domain], via Wikimedia Commons.