Observational v. Per Se Violations of DUI & DWI
The State must prove each element of Driving Under the Influence/Driving While Intoxicated (“DUI or DWI”) to secure a conviction for DUI or DWI. In each DUI or DWI case, the State must prove that 1) the defendant operated a motor vehicle and 2) the defendant operated such vehicle while under the influence of alcohol or drugs.
The State can prove the element of “under the influence of alcohol or drugs” in two manners: 1) observational, which relies on testimony from the arresting officer, Drug Recognition Expert, or other third-party testimony to prove that the defendant was under the influence of drugs or alcohol or 2) Per Se, which relies on a certified breathe test administered by law enforcement where the defendant’s blood alcohol content (BAC) was 0.08 or higher. Irrespective of the method of proof, the State must prove that the defendant was “under the influence of alcohol or drugs” beyond a reasonable doubt.
Observational Standard
New Jersey Court have defined “under the influence of alcohol” as follows:
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Substantial deterioration or diminution of mental faculties or physical capabilities due to intoxicating liquor. State v. Tamburro, 68 N.J. 414 (1975)
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Level of intoxication sufficient…physical coordination or mental faculties are deleteriously affected. State v. Emery, 27 N.J. 348 (1958).
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A driver is intoxicated where they are so affected in judgement or control as to make it improper for him to drive on the highways. State v. Johnson, 42 N.J. 146 (1964)
To prove “under the influence of alcohol,” the State must elicit lay testimony from law enforcement about their observations of the defendant proving that the defendant was “under the influence of alcohol” when operating a motor vehicle. The State routinely introduces the defendant’s failure of Field Sobriety Tests as evidence that the defendant was “under the influence of alcohol.”
Per Se Standard
In New Jersey, the State can prove “under the influence of alcohol” through results from the Alcotest 7110 MK III (Alcotest). A reading of 0.08 BAC or above will prove “under the influence of alcohol.” However, the State must prove the admissibility of the Alcotest results by clear and convincing evidence. Pursuant to the New Jersey Supreme Court case, State v. Chun, 194 N.J. 54 (2008), at a N.J.R.E. 104(a) hearing, the State must prove the admissibility of the Alcotest by showing: 1) the Alcotest was in proper working order, 2) the Operator was certified, 3) the Alcotest was administered according to established procedure and 4) the foundational documents for the Alcotest.
Why You Need an Experienced Criminal Defense Attorney?
DUI and DWI’s are serious matters that can have significant financial and economic penalties. DUI and DWI’s can complicate your or your loved one’s life and can hurt future career prospects. An experienced criminal defense attorney can help you challenge every aspect of the State’s case in chief to obtain a favorable resolution to your DUI or DWI.
To schedule a free consultation, contact the experienced criminal defense attorneys at Karpus Law at (973) 645-9453.
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