Fighting a DUI in Morristown if Your BAC Was 0.08 or Above
Posted by Scott Gorman - March 19, 2021

In New Jersey, it is illegal to drive with a blood alcohol concentration (BAC) of 0.08 or above. This is known as a per se DUI, and prosecutors do not need evidence of impairment to win a conviction. If your BAC is above the legal limit, you are guilty of driving under the influence—even if you are able to maintain safe control of your vehicle.

With this in mind, if you got pulled over and are facing a DUI charge because your BAC was 0.08 or above, what options do you have available? Can a Morristown DUI lawyer help you? If so, how?

Defending Against a Per Se DUI Charge Under New Jersey Law

Even if you blew above the legal limit, there are still various defenses a Morristown DUI lawyer may be able to assert on your behalf. As a result, and given the substantial penalties for DUI convictions in New Jersey, it is important that you speak with a lawyer promptly. Some examples of potential defenses to per se DUI charges in New Jersey include:

1. Improper Breathalyzer Administration

For a BAC reading to be valid, the arresting officer must administer the breathalyzer test properly. Improper administration of the test (i.e., failing to calibrate the device or provide appropriate instructions) can lead to a faulty reading.

2. Faulty BAC Reading (“False Positive”)

In addition to improper breathalyzer administration, various other issues can lead to faulty BAC readings (or “false positives”) as well. Some examples of these issues include:

  • Mouth alcohol (i.e., if you were drinking just a short time before administration of the test)
  • Consumption of baked goods, energy drinks and certain other foods
  • Use of mouthwash or breath mints
  • Use of Nyquil, cough syrup and certain other medications
  • Gastroesophageal reflux disease (GERD) and certain other health conditions

3. Inadequate Breathalyzer Maintenance

To produce reliable BAC results that are legally admissible in court, breathalyzer devices must undergo regular maintenance. If the device used to test your BAC had not been appropriately maintained (or if the police do not have adequate maintenance records), then the prosecutor’s office might not be able to use your BAC against you.

4. Rising BAC

When you drink, your BAC does not rise immediately. As a result, it is possible that your BAC was below 0.08 when you got pulled over, even if you blew above 0.08 on the breathalyzer. This is especially true if the arresting officer waited the requisite 15-20 minutes to test your BAC (to avoid a false positive due to mouth alcohol).

5. Constitutional Violations

Finally, even if your BAC result is valid, it could still be inadmissible in court if the police violated your constitutional rights. For example, if you were racially profiled or arrested without probable cause, you may be entitled to have all of the evidence from your DUI traffic stop withheld from trial.

Facing a Drunk Driving Charge in New Jersey? Talk to a Morristown DUI Lawyer for Free

Are you entitled to an acquittal based on one of these defenses? To find out, schedule a free consultation with Morristown DUI lawyer Scott Gorman. Call 973-796-3800 or contact us online now. We also have an Essex County location. 

Published in Categories: DUI / DWI