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DWI Conviction Possible Without Blood Alcohol Readings

The Appellate Division has recently reaffirmed a long-standing legal principle: one may be convicted of driving while intoxicated (DWI) even in the absence of blood alcohol readings. In State v. Salkewicz, the Appellate court upheld the defendant's conviction for DWI in Manchester Municipal Court despite the unavailability of Alcotest results, based upon the police officer's observations of her erratic driving as well as the sub-standard manner in which she performed the field sobriety tests at the site of the traffic stop.

The defendant was stopped in October 2008 in Manchester Township for repeatedly crossing the center line and driving erratically. According to the officer, she failed the field sobriety tests, including the heal-to-toe and one- legged stand tests. She was brought to the police station, submitted to the Alcotest, and produced blood alcohol results of 0.15 percent, almost twice the legal limit of 0.08. At trial, her attorney objected to the admissibility of the blood alcohol results on the basis that the defendant was not continuously observed by the operator of the Alcotest for a minimum of 20 minutes prior to the administration of the test as required by State v. Chun, the Supreme Court's decision which upheld the scientific reliability of the Alcotest. The municipal court allowed the readings into evidence, and the defendant appealed to Ocean County Superior Court. The Superior Court remanded the case back to Manchester, holding that the municipal court should have considered whether defendant could have been convicted based upon observations taking into account certain medical issues raised by the defendant which made it difficult for her to perform the road-side tests. On remand, the prosecutor stated he would proceed with the case without the blood alcohol results, and the municipal court nevertheless convicted the defendant based upon a review of a videotape of the stop. The defendant again appealed, and her conviction was upheld by both the Superior Court in Ocean County and later the Appellate Division based on visual evidence.

The Appellate Court's decision in this case demonstrates unequivocally that one may still be convicted of DWI based upon visual observations, even where blood alcohol results are unavailable or have been suppressed by the court. In most cases where the conviction is for a first DWI related offense, however, the loss of driving privileges will only be 90 days as opposed to 7 months since there are no blood alcohol readings for the court to consider.

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