Prosecution and Defense

What The State Must Prove to Convict a Defendant of DWI

In most cases, all the prosecutor has to prove is that the driver’s BAC was .08% or more. It is a violation to operate a motor vehicle in New Jersey with a blood alcohol concentration of .08% or more by weight of alcohol in the defendant’s blood. The BAC sample must be taken within a reasonable period of time after the operation of the motor vehicle. Remember even if you appear perfectly sober, if your BAC is .08% or more, then you are “cooked.”

What is the State’s Burden of Proof?

In relationship to the burden of proof, the manner in which the lawyer communicates (and educates) just how high “beyond a reasonable doubt” is to a jury, often is the difference in a conviction versus being found not guilty of the drunk driving charge. It is not necessarily what the lawyer says; rather, it is the manner in which he says it. If the jury does not think the burden is very high, it will take less evidence (and less convincing from the prosecutor) to convict you. One reason why I am so successful in trial is my ability to have the jurors realize just how high a burden “beyond a reasonable doubt” is.

The following is, in a nutshell, how I go about explaining beyond a reasonable doubt to jurors, and as you can tell, it is a very high burden.

The State of New Jersey must prove your guilt “beyond a reasonable doubt”, which is the highest burden of proof in the justice system. It is not defined, but we do how other burdens of proof have been described.

The lowest burden of proof is called probable cause. Have you ever received a ticket that you disagreed with (as opposed to just not liking the fact you received the ticket)? This level of proof is less then a 50-50 chance that you violated the law, but is all the officer needs to write you a ticket, or to arrest you.

The next highest burden of proof is called a preponderance of the evidence. This amount of proof occurs in civil courtrooms where people are suing each other for money. A preponderance of the evidence is proof amounting to you being 51% correct.

The next highest burden of proof is called clear and convincing evidence. This burden applies to child custody cases. This amount of proof will cause a juror to have a “firm belief” in the matter to be proved. To let the jury understand just how high this burden is, I find two women on the jury panel.

Beyond a Reasonable Doubt is the highest burden of proof. Although not defined, it is a much higher burden the clear and convincing evidence. Why? Your freedom is on the line! A judge must have more then “tons” of evidence that you were intoxicated before they could find you guilty. This is a very simple, yet extremely convincing manner of making a jury understand just how much evidence is required before they can convict a person, thus branding them a criminal for the rest of their life.

Simply put, if a Municipal Court Judge has a single doubt, based on reason, as to a person being intoxicated, they must follow the law and find them not guilty.

What must the State of New Jersey have to convict a driver of DWI?

Prerequisites: Almost all DWI charges arise from arrests which are considered warrantless seizures. Seizures made without an arrest warrant are presumed to be unreasonable. Thus, the State must establish that the officer had probable cause to (a) stop you, and (b) arrest you for drunk driving. Probable cause is a reasonable basis to act, usually involving a suspicion that you violated the law. The State must establish probable cause by a preponderance of the evidence.

Elements: Once these prerequisites are established, then the court can consider the elements of the offense. To convict you of drunk driving, the State must prove beyond a reasonable doubt that you:

  • operated or intended to operate
  • an operable motor vehicle
  • while either under the influence of liquor or with an alcohol concentration of 0.08% by weight of alcohol in your blood or breath.

Breath Tests: Breath testing is by far the most common way of testing for blood alcohol content [“BAC”]. The alcotest is by far the most commonly used machine to test breath in New Jersey.

What does the State of New Jersey have to prove before to verify that the breath tests results are reliable, and admissible?

Before the court can hear what breath test results are, the State must establish certain requirements:

  • The machine was working properly.
  • The officer who operated the machine was certified by the Attorney General to use it.
  • Radio frequency interference did not affect the machine.
  • The test was given correctly.

What documents should a person who gave a breath sample see in the discovery before the trial?

  • Police copies of the Summons and Complaint
  • Drinking-Driving Report, including
    • an observations check-off sheet and
    • a narrative of investigation
  • Alcohol Influence Report, including
    • chemical test information
    • full identification of the machine used
    • the type of machine used
    • the machine’s manufacturer
    • the machine’s model number
    • the time of tests were given
    • test results
    • an alcotest operational checklist
  • Chun Discovery

Additional Trial Preparation

When to Hire an Expert

If a defect afflicts the alcotest machine or its operation, then the defense may call an expert witness, often a factory trained breathalyzer technician formerly certified by the Attorney General as a Breath Test Coordinator Instructor with the New Jersey State Police.

Consider hiring a medical doctor if you have a health problem that affects breath test results — e.g., diabetes, hypoglycemia, asthma, fever, ulcers, hiatal hernia, and use of certain medications–or causes you to sway, stagger, have bloodshot watery eyes and droopy lids, fumble and move your hands slowly, and show other signs that may be mistaken for intoxication — e.g., diabetes, hypoglycemia, inner ear and eye disorders, neurological deficits, and allergies