If you are facing a driving under the influence (DUI) charge in New Jersey, the defenses you have available depend on the facts of your case. This includes whether your blood alcohol concentration (BAC) was over the legal limit. If you took the breathalyzer and blew 0.08 percent or above, you still have options available—but it will be especially important to have an experienced New Jersey DUI lawyer on your side.
5 Potential DUI Defenses When Your BAC was 0.08 Percent or Above
Fighting a New Jersey DUI when your BAC was over the legal limit starts with gaining a clear understanding of all relevant facts and circumstances. For example, to fully evaluate your options, you will need to know the answers to questions such as:
- Why did the police pull you over?
- How long after the police pulled you over did you take the breathalyzer?
- Did the police properly administer the breath test?
- Was the breathalyzer device properly calibrated?
- Have the police properly preserved your breath test result?
The answers to these questions—among many others—will determine what defenses your New Jersey DUI lawyer can assert on your behalf. With this in mind, some examples of potential defenses in DUI cases involving a BAC of 0.08 percent or above include:
1. Your Traffic Stop was Unconstitutional
In order for prosecutors to use your BAC against you, the police must have obtained your BAC reading without violating your constitutional rights. As a result, if your traffic stop was unconstitutional, your BAC—and any other evidence against you—may be inadmissible in court.
For a traffic stop to be constitutional, the police must have “reasonable suspicion” that you are guilty of a crime or traffic infraction. This does not mean that they have to suspect that you are driving under the influence. If they pull you over for speeding, for example, and then discover that you are inebriated, they can still arrest you for DUI. But, if the police pulled you over because of your race or gender, or if they pulled you over for any other reason that does not qualify as “reasonable suspicion,” this could provide you with a defense regardless of your BAC.
2. The Breathalyzer Device Wasn’t Properly Calibrated
Breathalyzer devices must be properly calibrated in order to provide accurate and reliable BAC readings. If the officer who arrested you used a breathalyzer device that was not properly calibrated, then your BAC shouldn’t be admissible in court. Likewise, if the police cannot prove that the device was properly calibrated (i.e., if they failed to maintain adequate calibration records), this could provide you with a defense as well.
3. The Arresting Officer Improperly Administered the Breath Test
In New Jersey, the police must follow specific rules and procedures when administering breath tests during DUI stops. If your arresting officer failed to follow any of these rules or procedures, this could also render your BAC reading inadmissible in court. For example, if the officer failed to adequately explain how to take the test or failed to advise you of your right to obtain an independent test, your New Jersey DUI lawyer may be able to use this in your defense.
4. There Is (or There Could Be) an Alternate Explanation for Your High BAC
Another way to deal with a high BAC reading is to show that there is (or could be) an alternate explanation for your blood alcohol concentration being over the legal limit. Had you recently eaten a food that is known for causing “false positives?” Do you have a medical condition that affects your BAC reading? These factors—among others—can prevent prosecutors from using your BAC to prove your guilt beyond a reasonable doubt.
5. Your BAC Rose Over the Legal Limit After You Got Pulled Over
Your BAC can continue to rise after you stop drinking—including after the police pull you over. As a result, even if you blow 0.08 percent or above during your traffic stop, this doesn’t necessarily mean that your BAC was over the legal limit while you were driving. If your BAC isn’t indicative of your level of intoxication while you were driving, then it isn’t relevant to your DUI case.
Important: Challenging Your BAC Result Won’t Be Enough to Protect You
While there are a variety of ways to fight a New Jersey DUI when your BAC was over the legal limit, it is important to understand that challenging your BAC still might not be enough to avoid a conviction. Under New Jersey’s DUI statute, you can be convicted if either:
- Your BAC is over the legal limit, or,
- You are “under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug.”
As a result, even if your BAC is inadmissible in court, prosecutors may still have other evidence they can use to secure a conviction. Thus, beyond considering BAC-related defenses, you may need to work with your lawyer to consider other potential DUI defenses as well.
What if You Don’t Have Grounds to Fight Your DUI?
Let’s say the police performed your traffic stop and arrest by the book. Let’s also say your BAC was over the legal limit, and you don’t have strong grounds to dispute its accuracy or reliability. What are your options in this scenario?
If you don’t have grounds to fight your DUI, then seeking a plea bargain could be your best option. New Jersey recently started allowing plea bargaining in DUI cases. An experienced New Jersey DUI lawyer will be able to help you decide whether it makes sense to seek a plea bargain, and if so, your lawyer can negotiate with the prosecutor’s office on your behalf.
Discuss Your Defense with an Experienced New Jersey DUI Lawyer
If you are facing a DUI charge in New Jersey after blowing over the legal limit, we can help you make informed decisions about your next steps. To speak with an experienced New Jersey DUI lawyer in confidence, call 877-435-6371 or request a confidential consultation online today.
