Driver Charged with DWI-Related Offense Despite Breath Test Results Below 0.08%, Based on “Totality of the Circumstances”

A person’s blood alcohol content (BAC) at the time of an arrest for suspected driving while intoxicated (DWI) is not the only factor police and prosecutors may take into account. Numerous other factors come into play, and a person could be charged with DWI or related offenses even if chemical testing shows a low BAC. This was demonstrated by the recent arrest of a man for intoxication manslaughter, despite a breath test reportedly showing BAC below the legal limit. Defending a case without BAC evidence, or with BAC results that are less than 0.08 percent, presents different challenges than a case that relies on breath or blood testing.

Police arrested a man in Austin, Texas in mid-January 2015 after the pickup truck he was driving allegedly collided with another vehicle at about 1:40 a.m. The driver of the other vehicle was pronounced dead at the scene. The driver of the pickup truck allegedly told officers that he had had two beers at a bar earlier. He also allegedly admitted running a stop sign immediately before the collision.

A portable breathalyzer test showed a BAC of 0.07 percent, below the legal limit of 0.08 percent. Officers at the scene, however, stated that they observed enough other factors to conclude that he was legally impaired, and that probable cause existed to charge him with intoxication manslaughter, a specific offense under Texas law. The fact that this case involved a fatality undoubtedly played a role in the decision to charge the driver with an alcohol-related offense despite the BAC results, but the state is not required to demonstrate a BAC of 0.08 percent or higher to prove DWI in all cases. This is true in New Jersey as well as Texas.

New Jersey’s DWI statute states that a person commits the offense of DWI if they “operate[] a motor vehicle with a blood alcohol concentration of 0.08% or more,” or if they “operate[] a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug.” BAC evidence is only one of several ways for the state to make a DWI case. It just happens to be the best-known way, perhaps since it seems to offer a simple test. A person with a sufficiently high BAC is legally “drunk,” and someone with a lower BAC is not. In practice, a person can be arrested and charged with DWI based on a failed field sobriety test, or even based solely on a police officer’s observation of the common signs of alleged intoxication, such as slurred speech, lack of coordination, and bloodshot or “glassy” eyes.

New Jersey does not have a distinct “intoxication manslaughter” statute like Texas, but the “death by auto or vessel” statute, also known as “vehicular homicide,” includes provisions related to intoxication. This offense is defined as a homicide “caused by driving a vehicle or vessel recklessly.” Proof that the driver was in violation of the DWI statute, either because of BAC or because of other factors, at the time of the alleged offense creates an inference that the person was driving recklessly.

If you are facing a DWI charge in New Jersey, you should seek the assistance of an experienced and skilled DWI attorney who can help you mount an effective defense. We have dedicated 100% of our law practice at Levow & Associates to defending DWI cases, and we are available 24/7 to help you. To schedule a free and confidential consultation with a skilled and knowledgeable advocate, contact us online or at (877) 975-3399.

More Blog Posts:

Court Decision Changes Warning Requirements for New Jersey Police Administering Breath Tests to DWI Suspects, New Jersey DWI Attorney Blog, November 30, 2014

What Is the Current Status of the Alcotest Machine in New Jersey DWI Cases? New Jersey DWI Attorney Blog, August 23, 2014

New Jersey DWI Defendant Challenges Alcotest Results, Citing Missing Device Maintenance Records, New Jersey DWI Attorney Blog, June 28, 2014


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