New Jersey Appellate Court Rules on Question of Police Duties Under State v. Chun

Law enforcement agencies in New Jersey use a device known as the Alcotest to determine the blood alcohol content (BAC) of individuals suspected of driving while intoxicated (DWI). A 2008 decision by the New Jersey Supreme Court in which we represented several parties, State v. Chun, determined that the Alcotest is scientifically reliable, provided that the state meets certain conditions. The decision also established procedures that law enforcement must follow when using the device. The New Jersey Appellate Division heard a case last year, State v. Sorenson, that asked it to decide whether a failure by police to follow certain parts of Chun required suppression of evidence obtained with an Alcotest device.

BAC evidence is not required in a DWI case. A court can convict a defendant of DWI based solely on the testimony of officers who observed the defendant’s appearance and behavior. This is known as an “observational violation.” The New Jersey DWI statute also provides, however, that any person with a BAC of 0.08 percent or higher is presumed to be under the influence of alcohol. A DWI case based on BAC results is known as a “per se violation,” since it rests on the presumption of impairment. For a first DWI offense, the penalties are the same for a per se violation when the defendant’s BAC is 0.08 percent or higher, but lower than 0.10 percent, as they are for an observational offense. The penalties are greater, however, for a per se violation with a BAC of 0.10 percent or higher.

After an individual submits a breath sample to an Alcotest machine, the device runs various tests and prints out a Alcohol Influence Report (AIR), stating the BAC detected in the sample. The AIR frequently serves as the state’s evidence of impairment. Under Chun, police are required to provide a copy of the AIR to a defendant or a defendant’s counsel.

The AIR for the defendant in Sorenson indicated a BAC of 0.12 percent. According to the Appellate Division’s ruling, police did not provide a copy of the AIR to the defendant at the time it was generated by the device, although the form on which it was printed had the preprinted statement “Copy Given to Subject.”

The defendant essentially conceded to the municipal court that the state had enough evidence to convict her of an observational violation, but she moved to suppress the BAC evidence. She argued that the state violated its obligations under Chun by failing to provide her with a copy of the AIR until trial. After the court denied her motion, she entered a conditional plea of guilty and appealed the denial to the Law Division. The municipal court imposed the higher sentence for a per se violation.

The Law Division granted the defendant’s motion to suppress, finding that Chun required the police to provide her with a copy of the AIR at the time of the test. It imposed the lower sentence for an observational violation. Prosecutors appealed to the Appellate Division, which reversed the Law Division and reinstated the original, higher sentence. It acknowledged the importance of providing a copy of the AIR early in the case, but it held that a failure to do so is not so harmful to the defendant as to warrant the suppression of evidence.

An arrest for alleged DWI in New Jersey can seriously affect your life, whether or not you are ever charged with, or convicted of, an offense. An experienced and skilled DWI attorney can advocate for you and defend you in court. At Levow DWI Law, P.C., we have committed 100% of our practice to DWI defense. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation to see how we can help you.

More Blog Posts:

Crime Lab Employees Allege Problems with Breath-Testing Machines Used in DWI Cases, New Jersey DWI Attorney Blog, October 16, 2015

New Jersey Courts Hold that Chun’s Twenty-Minute Waiting Period in DWI Cases May Not Be Used for Delay, New Jersey DWI Attorney Blog, July 28, 2015

New Jersey Appellate Court Applies Alcotest Rules Established in State v. Chun, New Jersey DWI Attorney Blog, June 17, 2015