Can I Be Convicted of New Jersey DWI without a Breath Test?

Too Much to Drink - Alcoholism

New Jersey state law requires you to provide a chemical test sample, usually a breath test, to police if they have probable cause to suspect that you have been driving while intoxicated or under the influence of drugs. You risk the same penalties if you refuse to provide a breath sample after police have requested that you provide one. Some people still refuse to blow into the breathalyzer machine, mistakenly believing police cannot prove a DWI case without a blood alcohol concentration (BAC) result. Unfortunately, things aren’t quite that simple. Prosecutors can introduce many other types of evidence to prove that you drove while intoxicated, including by arguing that you refused to blow into a breathalyzer because you knew you were too drunk to drive. Here are some of the most common ways New Jersey prosecutors can successfully prove DWI charges without a breath test.

If you have already been charged with DWI, you need to talk to a lawyer who regularly handles these cases to find out what your options are. Our skilled NJ DWI defense attorneys at William Proetta Criminal Law have been fighting charges for DUI in courts in Brick, Jackson, Toms River, Point Pleasant, Lacey Twp, and across the state of NJ for years. With decades of combined experience and specialized DWI defense training, we are thoroughly prepared to assist you. Contact us at (848) 238-2100 or request a free consultation here to discuss your case.

Refusal as Proof of Guilt in Toms River DWI Case

As mentioned above, prosecutors can often use your refusal to provide a sample against you. The prosecutor will say your refusal shows “consciousness of guilt,” i.e. that you risked serious legal and administrative penalties by refusing to blow into the machine because you knew your BAC was over .08% and you knew you should not have been on the road. They will argue that your refusal shows that you were feeling the alcohol, that you knew you were not good to drive, and that you drove anyway, putting lives of everyone else on the road at risk. These arguments can be powerful to many judges.

Poor Driving as Evidence of Intoxication in Brick NJ

Regardless of whether you provided a breath sample, the police can still introduce dash cam videos or testimony regarding how you were driving or how you were parked when they encountered you. If you were weaving between or even within lanes, if you were stopped in a parking lot and were found sleeping in your driver seat, if you were speeding or driving recklessly, if you were driving without your lights on or with a blinker needlessly flashing, or, even worse, if you got into or caused a car accident, the police and the prosecutor can argue that it’s obvious you were too intoxicated to drive. Ultimately, they can draw that conclusion from your poor driving.

Showing the Symptoms of Alcohol Impairment for Jackson DWI

Officers can also testify about what scientists have termed the “objective signs and symptoms of alcohol impairment” (or drug impairment, as the case may be). This is often used to prove that you were under the influence on the night of your arrest, regardless of whether you agreed to provide a breath sample. If you had bloodshot and watery eyes, slurred your speech, had trouble balancing, had an odor of an alcoholic beverage coming off your breath or your clothing, or showed other classic symptoms of alcohol and/or drug impairment, the officers will describe those signs and symptoms to the jury, and they will also testify that, based on their training and experience, these signs indicated you were too intoxicated to drive.

Field Sobriety Tests to Make Seaside Heights DWI Charge Stick

Officers also often administer a battery of roadside field sobriety tests during a DWI investigation. You may have seen these tests on TV prior to your arrest. The most common tests are the one leg stand test, the walk and turn test, and the “eye test” (technically known as the “horizontal gaze nystagmus test”). This is a long name for a relatively simple test in which you follow an officer’s light or pen with your eyes and they watch to see if your eyes jerk unnaturally. Officers will generally testify that your performance on these tests lines up with scientific research establishing “clues” of impairment, and they can testify that you exhibited these clues, regardless of whether you blew into the Alcotest machine.

Admissions used Against You for Lacey NJ DWI Accusations

Last but not least, police can use your answers to a series of roadside DWI investigatory questions to prove your guilt, even without a breath test. Some of the most common questions that get people into trouble include:

  • If you’ve had anything to drink
  • Whether you suffer from any medical conditions that might interfere with your ability to perform field sobriety tests; and
  • Where exactly you were coming from

If you tell the police you had two drinks, as many drunk motorists tell the police, the police and prosecutors will be able to tell the judge that you admitted you’d been drinking. Combine that admission with any bad driving, objective symptoms, or poor performance on field sobriety tests, and you are more likely to be convicted of DUI. If you tell the police you may have taken drugs or alcohol in the recent hours, prosecutors can argue to judge that you knew you were impaired, but you got on the road anyway. Remember, anything you tell the police can be used against you.

Facing DWI Charges Without BAC, What Next?

You should consult a qualified New Jersey DWI defense attorney for legal guidance if you have been arrested for DWI, regardless of whether or not you provided a breath sample. These charges are very serious and can impact your license, your finances, and even land you in jail, among other harsh consequences. Contact us at (848) 238-2100 for more information and free consultation about your DUI case in Seaside Heights, Stafford Twp,  Manchester, or another town in NJ. Our DWI lawyers will listen to your unique case and explain the potential defenses that may be available to you.

William Proetta

With more than a decade of experience defending clients against criminal charges, founding partner William A. Proetta has successfully handled and tried thousands of cases, from DWI to murder. As a New Jersey native, he has focused his career on helping people in the area where he grew up, serving Middlesex, Ocean, Hudson, and Union counties.