In New Jersey there are two ways to be convicted of driving while intoxicated. The first is the Per Se law. It is illegal to drink and drive a vehicle with a BAC of .08% or more (or operating a commercial vehicle with a .04% BAC or more). Even if you believe that level of alcohol did not impair you, you are Per Se driving while intoxicated. However, if your BAC is lower than .08%, you can still be charged with DWI if the amount of alcohol you consumed impaired your ability to operate your vehicle. This is commonly referred to as “Buzzed Driving” and is prosecuted as an Observation Case.
In an observation case, the investigating officer testifies in front of the judge about his/her observations. Basically – (1) the reason the vehicle was stopped – traffic violation, motorist aid, accident, and such, (2) initial interactions – conversation with driver, can’t locate credentials, disoriented, slow lethargic hand movements, odor of alcohol, admission of drinking, bloodshot watery eyes, fumbling, dropping documents, slurred speech and such, and then (3) results of standardized field sobriety tests performed. At this point the judge evaluates the testimony of the officer and defense witnesses to determine if he/she (judge) thinks the person was intoxicated at the time the vehicle was operated. If the judge thinks so, guilty of DWI.