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Low BAC? You May Not Be Off the Hook

January 25, 2016 | Posted In Drunk Driving |

When a police officer pulls you over because he suspects you are intoxicated, the officer is basing this initial assumption off of your driving behavior. At the first point of a DUI/DWI traffic stop, your blood alcohol content (BAC) is unknown and the officer is only looking at how you’re driving and how you’re responding to the environment around you – stop signs, speed limits, road dividers and even the officer himself.

Despite this, many drivers believe that the blood alcohol content measurement is what counts in a drunk driving conviction. New Jersey law sets the legal limit for a driver’s BAC at 0.08, which means anyone with a BAC of 0.08 or higher can be charged with driving under the influence. However, even if the driver’s BAC is below the legal limit, or if the driver refuses to submit to a chemical test, the state can still make a case and the driver could still be convicted.

What Other Evidence Is There?

In State v. Kessler, the Appellate Division of the New Jersey Superior Court detailed a variety of alternate ways that police officers can assess a driver’s sobriety or lack thereof -- all of which can be used to build evidence in a drunk driving case.

In the case at hand, an officer pulled over Kessler, the defendant, after observing him swerve from the left lane of a highway to the center, nearly merging into the path of a tractor-trailer. The officer also claimed that the car’s headlights were not on. When he approached the vehicle, his report indicated that Kessler’s eyes were “bloodshot and watery,” and that the smell of alcohol was prevalent.

The officer stated that Kessler failed a series of field sobriety tests, and he refused to submit to a chemical test, as is his right. However, New Jersey is an implied consent state, and a refusal is enough reason for an officer to charge a driver on the spot, in most cases. Even without the BAC results, Kessler was charged with refusal to submit to a breath test, reckless driving and DWI. Kessler denied having anything to drink before driving, but the observations that the officer listed in his report were used to build evidence of his intoxication at trial.

In response to this case, the Appellate Division issued the following list that reviews the factors that courts can use to determine whether the prosecution has proved a defendant’s intoxication in a DWI case:

  • Arresting officer’s observations – The officer at the scene may find physical or visible evidence of intoxication, such as the smell of alcohol or bottles in the car, bloodshot eyes, unfocused gaze, etc.
  • Obvious manifestation of intoxication – According to the court, this can be a variety of factors, as listed in the 2011 decision State v. Zeikel.
  • Reckless driving – Any driving that indicates you may not be in full control or making the best decisions can contribute to a DWI charge.
  • Field sobriety test performance – If you can’t pass a field sobriety test, the officer can use that evidence to point to intoxication.

For more information on drunk driving charges and evidence, contact the New Jersey DUI/DWI attorneys at Helmer, Conley, and Kasselman, PA. We represent any drivers who are facing license suspension, fines or jail time as a result of intoxicated driving charges.

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