Driving while intoxicated (DWI) is a traffic offense, rather than a criminal offense, under New Jersey law. Most—although not all—of the protections offered in criminal prosecutions by the U.S. and New Jersey Constitutions apply to DWI cases. The guarantee of due process in legal proceedings, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, is one of the most important protections. New Jersey’s DWI statute creates a legal presumption of intoxication for anyone whose blood alcohol content (BAC) is 0.08 percent or higher. The New Jersey Appellate Division discussed whether this violates due process back in 1959, in State v. Protokowicz. Despite its age, the case still has relevance to DWI defense today.
The term “due process” generally means the right to fair legal proceedings. The U.S. Constitution states twice that no one may “be deprived of life, liberty, or property, without due process of law.” Courts have interpreted the Fifth Amendment’s Due Process Clause to apply to the federal government, while the Fourteenth Amendment applies to the states. The New Jersey Constitution also provides for due process in Article I, section 1, stating that “[a]ll persons…have certain natural and unalienable rights,” including “those of enjoying and defending life and liberty, [and] of acquiring, possessing, and protecting property.”
The New Jersey DWI statute defines the offense in two ways. A person commits the offense if (1) they “operate a motor vehicle while under the influence” of alcohol or drugs, or (2) drive with a BAC of 0.08 percent or higher. In the second type of DWI, BAC evidence creates a presumption that a defendant was “under the influence.” State laws requiring drivers to submit to breath testing facilitate the collection of BAC evidence. Since this presumption seems to put a DWI defendant at a disadvantage from the very beginning, does it pose due process problems?