Recently, I had a case in which a young woman in her early twenties was involved in a collision with a parked car. It was late at night, and the young woman was confused by the lights of other vehicles. She did what she was supposed to do and called the police following the accident. In the crash, the young woman hit her head and had a possible concussion (based on statements made by her to her parents later, although she refused medical treatment both at the scene and the following day).
In New Jersey, a person can be convicted of DWI with or without a breath test reading, and can be convicted of DWI even if there is a breath test reading that shows the BAC to be under the legal limit of .08.
When the police arrived, the young woman told the officer that she had struck the car ahead of her and that the car was parking, not already parked (this turned out to be incorrect). The officer noted that she was slow to react, slurred her speech, had bloodshot and watery eyes, and her face was flushed. Despite the possibility of a head injury, and the potential impact on a person’s balance that a head injury and the impact of a crash might have on her ability to balance, the officer decided it was appropriate to conduct field sobriety testing.
Predictably, the young woman did not perform well on the field sobriety tests and was placed under arrest for DWI. She was taken back to the police station and asked to provide breath samples. Ultimately, the Alcotest 7110 MK-IIIC used by the police department (and all police departments in New Jersey, at least until the end of 2016) determined her BAC to be 0.04%, well under the legal limit of 0.08%.
Many defendants would assume that blowing a .04 would be the end of the story, and that they would not need to further defend themselves against a DWI charge. Perhaps this might be true in some states, but not New Jersey. In New Jersey, a person can be convicted of DWI with or without a breath test reading, and can be convicted of DWI even if there is a breath test reading that shows the BAC to be under the legal limit of .08. How? There are two ways a person can be convicted of an alcohol-related DWI. First, a person can be convicted on a per se case, which just means that the state can prove that the BAC was above the legal limit. Second, if the BAC is either under the legal limit, or the Alcotest reading is inadmissible for any number of reasons, or there is no Alcotest reading at all (if, for instance, the subject refused to submit to breath testing, or the Alcotest malfunctioned and didn’t produce a reading), then the State can still prosecute a defendant on what we term an “observations” case. In this scenario, the State relies on the testimony of the officer to demonstrate that the defendant was intoxicated. The observations of the officer include things such as: driving conduct, the odor of alcoholic beverages, ability to divide attention, performance on psychophysical testing (field sobriety tests), admission of drinking, etc. Taken together, all of that testimony can add up to guilty beyond a reasonable doubt in the mind of a judge.
In this particular case, my firm negotiated a plea agreement to careless driving with no license suspension. Clearly the conduct had been careless, as she admitted to hitting a parked car, but not intoxicated, and there had been no willful violation of the statute, meaning that no license loss was appropriate. Despite the imposition of two points on her license, the young woman and her family were exceptionally pleased with the outcome of her case.