Ability to Drive Regardless of Alcohol Is Not a Defense to DWI in New Jersey

Las Vegas signThe statute defining driving while intoxicated (DWI) in New Jersey establishes two ways for prosecutors to prove guilt. First, they can prove beyond a reasonable doubt that a defendant “operate[d] a motor vehicle while under the influence of” alcohol or drugs. Alternatively, they can show that a defendant operated a motor vehicle while their blood alcohol content (BAC) was 0.08 percent or higher. Despite the common name of the offense, however, the statute says nothing about “intoxication.” It also omits another word commonly used in discussions of DWI, “impairment.” All the way back in 1964, the New Jersey Supreme Court ruled in State v. Johnson that a defendant’s actual impairment is not an essential element of DWI, and the ability to drive safely anyway is not a defense.

Operating a motor vehicle with a BAC of 0.08 percent or higher is sometimes known as DWI per se, since the BAC evidence effectively creates a legal presumption of guilt. A defendant can challenge BAC evidence by questioning the accuracy of the testing device. State law requires police to follow specific procedures when administering a breath test, and the device requires regular maintenance and careful calibration. A failure by police to follow proper procedures can result in the exclusion of test results at trial.

A DWI conviction is possible without BAC evidence, or even with evidence that a defendant’s BAC was less than 0.08 percent, if the state provides evidence that the defendant exhibited signs of intoxication. This usually involves eyewitness testimony from police officers and others. Challenging this sort of evidence might require impeaching a witness’ credibility or providing a counter-narrative to the prosecution’s story. A defendant can also challenge the prosecution’s entire case if they can show that the original traffic stop or arrest violated their Fourth Amendment rights.

The facts of the Johnson case, despite occurring more than 50 years ago, are similar to many DWI cases today. Police responded to a report of an intoxicated driver, and when they pulled the defendant over, they claimed to notice signs of intoxication like slurred speech, glassy eyes, and difficulty maintaining balance. A breath test, which used a device called a “drunkometer,” showed a BAC of 0.18 percent. At that time, the legal limit was 0.15 percent.

The state offered three types of evidence at trial:  the police officers’ lay testimony, an examining doctor’s expert medical opinion, and the BAC test results. The defendant offered testimony from three physicians. The trial court convicted her of DWI, and the appellate court affirmed the conviction.

On appeal to the New Jersey Supreme Court, the defendant challenged the sufficiency of the state’s evidence, arguing in part that it had failed to prove that she was incapable of driving safely. The court cited a 1958 decision, State v. Emery, in which it held that the state did not have to prove that a defendant was “sodden with alcohol.” It held that the DWI statute established “a general condition, short of intoxication,” beyond which it was illegal for anyone to drive. A defendant must challenge evidence of being “under the influence,” rather than alleging that they could drive a car safely despite their condition.

If you have been charged with alleged DWI in New Jersey, DWI lawyer Evan Levow can help you understand your rights, guide you through the court process, and prepare a strong defense for your particular case. To schedule a free and confidential consultation with a member of our team, contact us today online or at (877) 593-1717.

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

Use of High Beams Does Not Justify Traffic Stop, According to New Jersey Supreme Court, New Jersey DWI Attorney Blog, September 29, 2016

Photo credit: Famartin (Own work) [CC BY-SA 4.0], via Wikimedia Commons.