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.