Like Bruce Springsteen, Can I be Charged with DWI in New Jersey, Even If My Blood Alcohol Content Is Below the Legal Limit?
Police can charge you for driving while intoxicated in New Jersey even if your BAC is below the legal limit. DWI charges at or below the BAC level happen frequently. This is because other things than alcohol–like narcotics, habit reducing drugs, and hallucinogenic–can impair driving. Very often, when an officer has the impression that a person is under the influence of something, they will administer a breath test only to be surprised when it comes back at a 0.00% or low alcohol reading. In that case, the officer may call another officer referred to as either a “drug influence evaluator” or “drug recognition expert” [“DRE”] who will use a technique called a “drug influence evaluation” [“DIE”]. DIE was developed by the Los Angeles Police Department in the late 1970s and approved by the National Highway Traffic Safety Administration [“NHTSA”] in the late 1980s. It’s been propagandized into reality throughout the country. We have quite a few of them in New Jersey.
The problem with the DIE technique is that it lacks any real scientific basis. Government studies indicate that the technique is more than 90% reliable. But the way that the government studies draw their conclusions poses problems. Their studies tend to overstate and confound positive results. Thus, that 90% number is not an accurate reflection of the technique’s reliability.
University studies have attempted to replicate government studies, applying slightly different criteria. For example, the university studies eliminate the step where a DRE asks the subject, “What have you taken?” With the answer to this question, there tends to be a high degree of correlation between the DRE’s opinion and what the person admits to taking. The DRE’s opinion is supposed to be corroborated by toxicology, and oftentimes, it is. Most people, ignorant of their constitutional rights, honestly tell an officer what they took. Thus, the toxicology will confirm that.
Officers are trained to make measurements and observations to certain clinical signs, such as pupil diameter, pulse, blood pressure, and body temperature. According to the DIE technique, these clinical signs are arranged in a metric or chart for the DRE to use to correlate with a particular drug category. However, in practice, most DREs don’t do that. When we review cases based on DRE opinion, we find that the clinical signs almost never match the drug category opined by the evaluator. DRE-based cases tend to be weak.
At the moment, a seminal case is happening in New Jersey, State v. Olenowski. I represent the N.J. State Bar Association as amicus in that case. This case involves a special master appointed by our Supreme Court. He is tasked with holding hearings to determine the scientific reliability of the DIE technique and DRE opinion. Prior to this endeavor, there were some unreported non-precedent setting cases addressing DRE opinion. Half of the cases argued that the technique was not generally accepted in the scientific community and, therefore, not admissible. The other half held that the officers had special training, so their opinions could be admitted and given whatever weight the trial judge chose to give it. The side that is correct won’t be determined until the hearings in State v. Olenowski are completed and the special master gives his report and recommendations to the Supreme Court. The Supreme Court will ultimately decide the issue after oral argument.
Recent media reports of Bruce Springsteen’s arrest for DWI present law enforcement with a different problem—that of prosecuting a defendant whose breath test result is 0.02 without any evidence of drug use. Even when field sobriety tests appear to be incriminating, they are only intended to assist the officer in determining probable cause—i.e., whether further investigation is warranted. Proving guilt beyond a reasonable doubt is highly doubtful. Think of field sobriety testing like a metal detector at an airport. That metal detector is intended to detect guns, knives, and other weapons. While those detectors may indicate further searching is warranted, the vast majority of people diverted for such searching are sent on their way and not charged with any violations. In a case like Springsteen’s, he will likely be acquitted. There is no presumption of sobriety at a 0.02 alcohol level in New Jersey or in national parks, but he would be presumed innocent by law in many, if not most, states.
Can One Still Get Charged For DWI In New Jersey If They Had Been Drinking The Night Before And Driving The Next Day?
Whether someone gets charged or ticketed the next day for DWI after a night of drinking will depend on how much he or she had to drink and how their behavior is affected. Sometimes people drink an awful lot at night before they get up a few hours later and start driving. If they get pulled over and tested, they may not have eliminated enough to get below the legal limit. Therefore, a person can get charged or ticketed for DWI the next day after a night of heavy drinking.
One reported case in New Jersey involved a person accused of driving while under the influence of drugs. His behavior was affected by a hangover from heroin use. An innovative prosecutor could apply the same theory in an alcohol influence case. Thus, even with a hangover, a person could be charged with DWI the next morning.
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