While we await the return of DUI checkpoints to the Jersey Shore, the Law Office of Frederick P. Sisto is happy to provide tips to help you avoid a wrongful DUI conviction. A common misconception about blood alcohol concentration (BAC) is that a defendant with an Alcotest reading of less than .08 can not be convicted of DUI.
Most people, including many attorneys, think that an Alcotest reading below .08 requires a not guilty verdict. That is only half right. A reading below .08 is proof that the accused is not guilty of a per se DUI. That still leaves the prosecution with the ability to prove what is commonly referred to as a DUI “observation case.”
An observation case can be proven based on the defendant’s: operation of a motor vehicle, performance on balance tests, speech, behavior, the smell of alcohol, admissions to drinking or drug consumption (including prescribed drugs), and the opinion of a qualified police officer, among other factors.
An observation case requires proof beyond a reasonable doubt that the defendant operated a motor vehicle while under the influence of alcohol or drugs. Our courts define “under the influence” as “a substantial deterioration or diminution of the mental faculties or physical capabilities whether it be due to intoxicating liquor . . . or drugs.” In plain English, most courts are only looking to determine if the ingestion of drugs or alcohol made the defendant a less safe driver by hindering his or her focus or reaction time.
The prosecution is not required to prove which particular substance or combination of substances caused intoxication. Thus, while a .07 or lower BAC will lead to an acquittal of a per se DUI, it can be used as evidence of intoxication in an observation case. That is to say, it can be used to show that a small amount of alcohol in combination with other drug(s) left the defendant “under the influence.” Or, it can be used to prove that a particular defendant was hyper-sensitive to the effects of alcohol and a small amount left him “under the influence” even though his BAC was below .08. The ultimate results will depend on the specifics of a given case, including which judge decides the case. There is no right to a jury trial for DUIs in New Jersey.
Stay tuned for additional tips and remember that the best DUI defense is a designated driver. Have a good week-end!