DWI verdict stands upon the Observations of the police officers

DWI Field Tests and Observation DWI: No Breathalyzer DWI conviction stands based only upon the Observations of the police officers.

Many are tempted to forget that the police do not have to have a per se breathalyzer violation (blood alcohol content) to charge or convict a person for DWI. At common law, and throughout the ages, a police officer can charge with you DWI, and you may be convicted at trial, solely upon the officer’s observations of your behavior, including speech, smell of alcohol on your breath, erratic driving, unsteady gait, and/or performance on the field sobriety tests. For an understanding of our tactics and experience in defending these matters in Morris County, Parsippany, Denville, and Northern New Jersey, please refer to http://www.johntierneylaw.com/Criminal-Defense/Driving-While-Intoxicated-DWI.shtml.

As stated yesterday in our post, now, the Appellate Division ruled in State v. Bernokeits, A-3150-10, that only a reasonable, articulable suspicion of unlawful behavior-rather than probable cause– justifies a police officer in ordering a motorist to perform the field tests. For argument against this holding, see our blog yesterday. Via State v. Salkewicz, a Court can also find you guilty of a common law DWI based upon those same tests. The defendant, inState v. Salkewicz, A-0224-10, argued that her unstable driving and deficient motor skills were the result of ‘high heels’ and a health disorder.

The Appellate Division disagreed, affirming defendant’s conviction for DWI, and stating that the proofs regarding defendant’s erratic driving and observations of her deficient performance on the field sobriety tests (Field Tests) were sufficient to establish her guilt beyond a reasonable doubt.

This finding also reminds us that video of the field sobriety tests must be obtained, as early as possible, during discovery, in order not only to contest the lawfulness of the order for field sobriety tests but also to contest findings which may lead to a common law, observation only DWI conviction.