Five Factors Courts May Consider in Determining Whether a Driver Was Impaired in a New Jersey DWI Case

A common misconception in driving while intoxicated (DWI) cases involves breath testing and blood alcohol content (BAC). New Jersey’s DWI statute states that a person who operates a vehicle with a BAC of 0.08 percent or higher commits a violation, but this is not the only way the state can prove intoxication or impairment. The statute actually defines the offense in two ways:  driving with a BAC above a minimum amount, or driving “under the influence” of alcohol or other drugs. Even without any BAC evidence, prosecutors may still be able to prove that a defendant was “under the influence,” intoxicated, or otherwise impaired. The Appellate Division of the New Jersey Superior Court issued a ruling several months ago in State v. Kessler, which identified various methods of presenting evidence of intoxication or impairment.

A police officer pulled the defendant over at about 1:22 a.m. He had allegedly observed the defendant swerve from the left lane of the highway into the center lane, putting him in the path of a tractor-trailer. He also claimed that the defendant was driving without his headlights on. The officer testified that the defendant’s eyes appeared “bloodshot and watery,” and the officer could smell alcohol. The defendant allegedly refused to submit a breath sample and did not perform well on several field sobriety tests (FSTs).

The defendant was charged with DWI, refusal to submit to breath testing, reckless driving, and other offenses. At trial in the municipal court, the defendant presented testimony from several expert witnesses. One witness testified about difficulties faced by some people on the horizontal gaze nystagmus (HGN) test. Another witness testified about conditions, both congenital and injury-related, affecting the ability to perform FSTs like the walk-and-turn and one-leg-stand tests. The defendant denied drinking any alcohol on the night of his arrest.

The municipal court convicted the defendant on all counts, as did the Law Division after a de novo review. On appeal, the defendant raised issues with the Law Division’s assessment of the facts. The Appellate Division noted limits placed by state law on its ability to review lower courts’ findings of fact. It offered a useful review of factors that may lead courts to find that prosecutors met their burden of proof under the DWI statute.

1. “Obvious manifestations of drunkenness” – The court cited its 2011 decision in State v. Zeikel, which identified a variety of factors that may establish intoxication besides overt drunkenness.
2. Officer’s observations – An officer’s testimony, the court held, may support a finding of intoxication to the extent it is “informed by the officer’s training and experience when dealing with intoxicated persons.” This may include both observations of a defendant’s demeanor as well as physical signs like an odor of alcohol or bloodshot eyes.
3. Field sobriety tests – Results of FSTs administered by trained, experienced officers are similarly pertinent, the court stated.
4. Reckless driving, or other charges – Evidence that a defendant was driving in an erratic or unsafe manner may support a finding of impairment.
5. Refusal to submit to breath testing – Despite the Fifth Amendment privilege against self-incrimination, the court held that refusing a breath test “can create an inference of guilt to DWI.” The court has held this for at least 40 years, going back to its 1974 decision in State v. Tabisz.

If you have been charged with alleged DWI, a knowledgeable and experienced DWI defense lawyer can help you understand your rights and guide you through the often complicated court process. We have dedicated 100% of our practice at Levow DWI Law, P.C. to representing New Jersey DWI defendants. Contact us online or at (877) 975-3399 today to schedule a free and confidential consultation with a member of our legal team.

More Blog Posts:

New Jersey Appellate Courts Are Limited in Their Ability to Review Factual Findings in DWI Cases, New Jersey DWI Attorney Blog, August 29, 2015

Recent Decisions in Several New Jersey DWI Appeals Demonstrate that Actual Driving Is Not Always Required to Sustain a DWI Conviction, New Jersey DWI Attorney Blog, June 19, 2015

New Jersey Appellate Court Reverses DWI Conviction, Finding Problems with Field Sobriety Tests, Other Evidence, New Jersey DWI Attorney Blog, May 3, 2015

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