The three-judge panel continued in relevant part: On de novo review, the Law Division upheld defendant’s DWI conviction. The Law Division judge held that the admission of the blood sample certificate and the State Police laboratory documents did not violate the Confrontation Clause under Crawford, because those documents, in the judge’s view, were not “testimonial” in nature. Accordingly, the Law Division held that defendant’s reported blood alcohol concentration of 0.103%, (stipulated by the State to be treated as being no greater than 0.10%), provided a per se forensic basis to convict defendant beyond a reasonable doubt of driving while under the influence of alcohol.
Apart from the forensic proofs, the Law Division judge was also persuaded that defendant’s DWI conviction was independently sustainable beyond a reasonable doubt, based upon Officer Knepper’s numerous field observations indicative of defendant’s intoxication. The Law Division judge catalogued those facts in detail:
The State had to prove that the defendant was under the influence of alcohol at the time he was driving. Combinations of factors such as slurred speech, loud abrasive behavior, disheveled appearance, red and bloodshot eyes, the odor of alcohol on a defendant’s breath, failure to produce driving credentials, and erratic driving have all been held sufficient to sustain a conviction for driving while intoxicated. See State v. Cryan (App. Div. 2003); See also State v. Hudes (Law Div. 1974). Here, the record demonstrates that almost all these factors were present.
Based on Officer Knepper’s testimony, the state established that (1) the defendant admitted that he lost control of his car causing it to go off the road and flip over onto its roof, (2) his hair was mussed and his clothes were dirty, (3) his eyes were watery and bloodshot, (4) he had the odor of alcohol on his breath, (5) he slurred his words when he spoke, (6) he was walking in a slow manner, (7) he admitted that he had consumed five beers that evening, and (8) he acted in an antagonistic manner towards the officer when he arrived at the hospital.
Since this opinion issues, the National Highway Traffic Safety Administration (NHTSA) has stated that there are too many benign explanations for bloodshot and watery eyes to treat the, as evidence of intoxication. Our courts will probably still allow bloodshot and watery eyes to be considered as bases to establish probable cause to arrest. Such is the case with horizontal gaze nystagmus (HGN) testing.
