0.9% BAC DWI Dismissed At Trial
At Proetta & Oliver we handle a lot of DWI charges in Middlesex County, New Jersey and throughout the state every year. Surprisingly we are able to resolve a large portion of these as dismissals or downgrades without the necessity of a trial. However, occasionally litigation is unavoidable and we don’t hesitate to bring a case to trial when it is in the best interests of our clients. Recently we had a tough DWI case where the client was facing was a first offense DWI with a .09% BAC reading. These cases are often seen as “tough” because there is not much incentive for the defendant to plead guilty since any BAC lower than .10% is already considered a lower tier drunk driving offense which means you are looking at a mandatory 90 day suspension no matter what, leaving the sentencing judge with no discretion to go higher or lower. This means when there aren’t blatant issues in the evidence both the prosecutor and the defense will dig in and opt to try the case. And that is exact what we had in State v. P.T. which was decided on June 22, 2018.
The defendant in the case had been pulled over after crossing the double yellow line and swerving into the opposite lane of traffic and thereafter speeding approximately 10 mph over the speed limit. These allegations by themselves would be considered clear proof of erratic driving, although not dispositive of drunk driving. Once stopped and approached by the police officers, the defendant had trouble performing the ABC’s as well as the standardized field sobriety tests they asked him to perform such as the Walk & Turn and One Leg Stand. On the Walk & Turn he stepped on his feet, stepped off the line to gain his balance and did not touch heel to toe on each step. Then on the One Leg Stand he continued to perform poorly because he could not keep his arms at his side and put his foot down three times promptly the police to end the test. To make matters worse he admitted to consuming three beers when questioned by the police as to what and where he had been drinking that night. Then once back at the station, he agreed to take the breathalyzer and blew a .09% BAC which is considered a per se violation (anything .08% higher is presumed under the law to be drunk).
The facts we were dealing with were not great but our client hired us to fight the case and we weren’t going to back down. So we began preparing for trial and examining the weaknesses in the state’s case such as inconsistencies in the police officer’s report and possible mistakes. We also hired a defense expert (retired state trooper) to analyze the police officer’s conduct in administering the field sobriety tests and the breathalyzer back at the station. What we found was pretty amazing – what looked like a solid case on the surface was actually full of issues that left a lot of unanswered questions. First, one of the procedures necessary to administer the breathalyzer known as “the 20 minute observation period” was referred to in the police report but when we examined closer the time period of when that actually occurred was left out (for instance from 1pm – 1:20 pm). Based on this, we were able to have the breathalyzer reading suppressed from evidence since the police could not recall the actual times he observed the defendant prior to taking the breathalyzer. Nevertheless, now even if with the breath reading suppressed, the defendant still faced the possibility of being found guilty of DWI based on the erratic driving, his admission to consuming alcohol and his poor performance on the field sobriety tests. However, upon a closer look at report and body cameras, it became noticeable that the police had actually forgotten instruct the defendant to “look at your feet” during the Walk & Turn process. The defense expert was able to testify that something as simple and small as that can have a big impact of the accuracy of the tests and most likely contributed to the defendant stepping on his feet and stepping off the line. After hearing the testimony outlining the various issues, the judge determined that the State could not prove the DWI case beyond a reasonable and the drunk driving charge was dismissed against our client.