I believe you mean a .079 BAC, which is officially a .07. If you were a .79 you would have been dead. The short answer is, yes. You can be charged with and convicted of DWI with a BAC of .07. The prosecutor will have to prove, based on the police officer's observations, that you were intoxicated due to alcohol and that it affected your driving, whereas if you were a .08 or higher those facts are assumed to be true. It is much harder for the prosecutor to win a case under .08 BAC. For that reason, if you have been charged with this, you MUST hire an attorney as you have a case with a viable defense.
You don't mention whether you had to perform a field sobriety or other form of test before the breath test. This along with the officers observations and "experience" may well be part of the case against you.
I think you mean a .079 instead of .79. A reading that high would mean you
were dead. Although .08 BAC is the "legal limit", you can still be charged
with DWI for less than that. The standard is whether you were operating the
motor vehicle while you were intoxicated. You can still be "intoxicated"
under .08. However, with a .07, the chances are slightly better.
You are dead at .7. You can be convicted at .079. Although they round down and you are under the .08 legal per se limit you still can be convicted on what is known as an "observation" case. If you are a first offender the good news is you face only a 3 months suspension. The bad news is the definition of DWI in NJ is imbibing to the extent that physical coordination or mental faculties are deleteriously affected. State v. Emery. This is very broad. That is why the FST are called divided attention tests. They not only test your coordination but also you attention to instruction. You need an experienced criminal defense attorney ASAP. They are likely going to go after you on this.
The officer's observation of your field sobriety testing is sufficient to convict, even if your BAC was slightly below. It is illegal to drive intoxicated, whether you exceed the per se limit of .08 or not.
Law Offices of James A. Abate Jabatelaw.com (732) 412-2364
It is correct that the prosecutor can still try to convict you, but at least you have a defense at your disposal. In my own practice, I have been successful in the past in getting DUI cases dismissed when the defendant has a BAC of less than .08.
If the prosecutor tries to proceed with conviction based on the field sobriety tests, there are expert witnesses available who can testify as to the validity and reliability of the field tests.
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