Video Evidence in New Jersey DWI Cases

In prosecutions for alleged driving while intoxicated (DWI) in New Jersey, the state must prove each element of the offense beyond a reasonable doubt. Municipal court judges determine whether prosecutors have met their burden of proof when a case goes to trial. Last year, the New Jersey Appellate Division considered a defendant’s claim that a police officer’s failure to record video of her field sobriety tests (FSTs) should weigh in her favor. The court’s ruling in State v. Belko is a reminder that New Jersey gives prosecutors rather wide latitude in the types of evidence they may use in DWI cases.

The New Jersey DWI statute allows prosecutors to prove impairment by demonstrating that a defendant had blood alcohol content (BAC) of at least 0.08 percent, or by showing other evidence that they were “under the influence” of alcohol, narcotics, or other drugs. This could include a defendant’s performance on FSTs, their appearance or demeanor, or testimony from an officer trained in drug recognition.

Municipal judges must weight the credibility of eyewitness and expert testimony in DWI trials. This often requires subjective determinations of how a witness appears in court. As video recording becomes increasingly common, thanks in part to near-ubiquitous smartphones, more and more arrests and other incidents are recorded by one or more people. These videos sometimes serve to challenge the official story from one (or both) sides. Video evidence is often admissible in court, but the Belko case addressed the question of whether video evidence should be required.

According to the Appellate Division’s ruling, the arresting officer witnessed the defendant driving slowly, drifting across lanes, and almost hitting several parked cars before mounting a curb and hitting a road sign. The officer testified that the defendant appeared disoriented, which the defendant claimed was because she had just been in an accident. Although the officer did not initially smell alcohol, he said that he did smell it after he asked the defendant to exit the vehicle. He also testified that she leaned on the vehicle for support, and that a Horizontal Gaze Nystagmus test indicated intoxication. The defendant reportedly admitted to having consumed one drink earlier in the evening. The officer took her to the police station to perform the remaining FSTs “[b]ecause of the weather conditions, and with [her] consent.”

The officer administered the remaining two standard FSTs, walk-and-turn and one-leg-stand, at the station. He set up a DVD recorder, but according to the court the device malfunctioned and did not record anything. The defendant was charged with DWI and refusal, and was convicted by a municipal court judge. On appeal, she claimed that the court should have drawn an “adverse inference” against the state “for its failure to preserve and produce a video.”

The Appellate Division affirmed the lower courts’ rulings. It noted that it is limited in its ability to review municipal judges’ findings of fact, and that the municipal judge in this case found the testimony of the state’s witnesses to be more credible than the defendant’s testimony. It found that the officer’s observations of the defendant, along with her own statements, were sufficient to uphold the verdict, even without video evidence.

If you are facing alleged DWI charges in a New Jersey court, DWI attorney Evan Levow can guide you through the court process and advocate for your rights. Please contact us today online or at (877) 593-1717 to schedule a free and confidential consultation with a member of our skilled and knowledgeable team.

More Blog Posts:

Evidence in New Jersey DWI Cases, Part 4: Field Sobriety Testing, New Jersey DWI Attorney Blog, February 19, 2018

Dashcam Videos from New Jersey Police Vehicles Are Public Record, According to Appellate Division Ruling, New Jersey DWI Attorney Blog, July 20, 2016

New Jersey Law Enforcement Patrol Vehicles Required to Have Video Cameras Under New Law, Funds to Come from New DWI Surcharges, New Jersey DWI Attorney Blog, October 1, 2014