Looking at this result, you may be saying to yourself, well of course he’s not guilty…the legal limit is .08 BAC. In actuality, you can be convicted of DWI on a reading less than the legal limit. In fact, in many jurisdictions, the prosecutor will elect to go to trial on this type case because he/she is confident that they can prove the DWI charge on the “observation” portions of the offense, i.e. field sobriety test, admission of drinking, etc.
The DWI laws in this State allow for prosecution of DWI on two alternate basis; 1) the per se offense, which is based upon the Alcotest/Breathalyzer readings 2) proving the individual was under the influence of alcohol or drugs. The theory being under the later that alcohol/drugs affect each individual differently, and although the individual is under the legal limit, the alcohol or drugs may still have caused him to be under the influence while operating a motor vehicle.
Under normal circumstance, an individual who is under the legal limit performs reasonable well on the field sobriety test, and this performance is typically memorialized in a video recording. However, in cases where my client performed poorly, it is important to offer an explanation as to why. This can be accomplished through expert testimony, doctors reports, police error in the administration, wind conditions, uneven test surface, etc.
Given the social significance that DWI has taken on politically, prosecutor are unlikely to concede their inability to prove a DWI based on operation prior to trial. However, an experienced NJ DWI or DUI lawyer will be able to make a compelling case for a directed not guilty verdict by compiling and organizing the defense evidence to show that the observations of the officer are not sufficient to sustain a conviction. This is exactly what I was able to do in this instance.