Here in the Garden State, cases involving motorists who have been charged with DWI can be prosecuted in several ways. One of the more common approaches used by municipal prosecutors includes charges of driving under the influence based on a blood-alcohol concentration (BAC) of 0.08 percent or more. This type of case involves what is known in legal circles as a “per se” charge. As a well-established legal firm, my colleagues and I have nearly 100 years of collective trial law experience, including drunk driving and drug DUI defense of cases base on per se evidence.
In situations of drivers being charged for operating a motor vehicle while impaired based on a BAC measurement of 0.08 percent or above, those per se DWI charges refer to the legal definition, that is, the driver’s actions were inherently illegal. The New Jersey legal statutes essentially make driving with any BAC over the 0.08-percent limit an unlawful act. The per se aspect essentially says that the circumstances surrounding how or why the driver became intoxicated is not relevant to the prosecution of the offense.
Because per se DWI charges do not require extrinsic proof of any surrounding circumstances, it is much easier to prosecute a driver based solely on measurement of blood-alcohol content than other more subjective evidence, such as results from a roadside sobriety field test, etc. Drunk driving, from a per se standpoint, is essentially a chargeable offense made so by New Jersey statute. This is not exclusive to New Jersey, as many other states also have laws that make driving with a certain level of alcohol in one’s system illegal per se.
Some of the more important aspects of defending a driver whose BAC was measured in excess of 0.08 percent include an investigation as to the proper training of the Breathalyzer or Alcotest machine operator, the procedures used in taking the measurements, and also the way in which the initial traffic stop was conducted prior to the arrest of the motorist in question. Although New Jersey DWI law does not provide for a jury trial, a judge being the sole arbiter, there is an allowance for what the law refers to as a “de novo” appeal.
For first-time offenders the process is fairly straight forward and the penalties, though rather stiff, simple to understand. However, second- and third-time drunk driving offenders face special concerns due to enhanced penalties associated with multiple DWI-DUI convictions. Not long ago, a Monmouth County driver was arrested by police twice initially, and then a third time for DWI in the same week. Such instances, though infrequent, can surely complicate a driver’s defense.
In regard to that motorist’s unlucky circumstances, police reportedly had arrested and charged the 46-year-old Keansburg resident twice in less than 24 hours days before the third incident. According to news reports, the initial arrest took place after police stopped the man after he fled the scene of an accident in which his vehicle struck another car. With the help of the accident victim, officers managed to locate the suspect, who was subsequently charged with careless driving and DWI in a school zone, among others.
At the time of the arrest, it was determined that the driver was operating his vehicle on a suspended license. Although the man’s vehicle was impounded as a result of that arrest, police stated that the driver retrieved his vehicle from the impound lot without permission the next day. Not long after, according to news articles, patrolmen came upon the man and his vehicle, which was stuck in a snow bank along a portion of Laurel Ave. Upon investigation, the driver was again determined to be intoxicated, which led to his second arrest.
A few days later, the driver was arrested for third time having hit a fire hydrant near the intersection of Beachway and Laurel avenues. The accident was apparently precipitated by a chase involving the police, who had observed the man’s vehicle being driven along a stretch of Church St. Knowing that the driver’s license had been revoked, the officers attempted to pull the man over, but he allegedly drove through a parking lot in an effort, police say, to evade arrest.
Eventually, after chasing the man down along Church St. and into Hazlet Twp., the pursuit ended when officers caught up to the suspect back in Keansburg where he reportedly lost control of his car and hit the hydrant. That episode resulted in the man being charged with eluding police, as well as DWI and operating a motor vehicle under a suspended driver’s license. A judge set the man’s bail at $20,000, cash only. He was subsequently remanded to the Monmouth Co. Correctional Institution.
Keansburg man arrested for third DWI in less than a week, NJ.com, February 23, 2014