Articles Posted in Alcotest

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New Jersey’s driving while intoxicated (DWI) law imposes substantial penalties for offenses, including driver’s license suspension, fines, and even jail time in some cases. New Jersey also has a law that deals with boating while intoxicated (BWI) and imposes similar penalties. The similarities do not stop there. Just like with DWI, people who operate certain types of watercraft on New Jersey waterways have given implied consent to submit breath samples to police, which they will use to measure blood alcohol content (BAC). Refusal to submit to breath testing for suspected BWI is a separate offense. The penalties are similar to those in New Jersey DWI refusal cases.

A person commits BWI if they operate “a power vessel or a vessel which is 12 feet or greater in length” while intoxicated. A “vessel” is any type of watercraft. A “power vessel” is one that does not rely solely on “sails or…muscular power” for propulsion. A person who operates a motorboat while under the influence, therefore, commits BWI no matter the size of the watercraft. If that same person is operating a canoe, kayak, or sailboat, on the other hand, state law probably would not consider it to be BWI unless the craft was at least twelve feet long. That said, other boating laws and regulations might apply if someone is operating a large sailboat in a reckless manner.

A member of the New Jersey State Police or a local law enforcement officer can instruct a person operating any type of watercraft covered by the BWI statute to submit a breath sample. The officer must have a reasonable suspicion that the person is under the influence of alcohol or drugs. State law establishes procedures that police must follow in order to collect breath samples. The New Jersey Supreme Court’s ruling in State v. Chun requires police to meet additional requirements when using an Alcotest device in BWI cases.
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The state has the burden of proving guilt in New Jersey driving while intoxicated (DWI) cases. This is a difficult burden to meet. A DWI lawyer’s job, in part, is to challenge the reliability of the methods that prosecutors may use to prove that a defendant was under the influence of alcohol or drugs. Many of the tests that police use are not as reliable as the public might think. A person can fail a field sobriety test for numerous reasons besides intoxication, for example. Breath testing devices can be highly unreliable without careful maintenance and operation. Before prosecutors can introduce evidence based on an unfamiliar scientific process or device, New Jersey courts require evidence that this process or device has the scientific community’s acceptance. This is known as the Frye standard. Several types of evidence used in New Jersey DWI cases have faced the Frye standard over the years.

What Is the Frye Standard?

The Frye standard gets its name from a 1923 decision by the D.C. Circuit Court of Appeals. It applies to methodologies, processes, or devices that courts have not encountered before. In order for evidence based on a new device or process to be admissible, the party introducing it must show that it has “general acceptance in the particular field in which it belongs.”

Many jurisdictions have abandoned Frye because it imposes such a stringent standard of proof. New Jersey courts still use it for criminal and motor vehicle offenses.

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In any New Jersey courtroom proceeding, neither side can present any evidence unless the court has found that it is admissible. Municipal court judges hearing driving while intoxicated (DWI) cases often have to rule on defendants’ motions to suppress evidence that police allegedly obtained unlawfully. They must rule on objections to testimony based on rules about relevance and hearsay. Scientific evidence presents additional challenges, especially when it involves new or unfamiliar techniques or technology. With police around the state preparing to roll out a new Alcotest device in DWI cases, it is worth considering how courts decide whether to admit new scientific evidence.

Why is there a need for a separate standard for scientific evidence?

Trials and hearings may have two types of witness testimony. Fact witnesses can testify about what they saw and heard. They are not supposed to insert their own opinions. A person who witnessed a car accident, for example, can testify about what they saw, but not about why they think the accident happened.

An expert witness can testify about their opinions on certain matters. In order for the court to accept them as an expert witness, they have to testify about specialized education, training, or experience that gives them greater insight into an issue than most people. A DWI defendant who failed the field sobriety tests because of a leg injury could have their doctor testify about that injury. The doctor’s medical training allows them to offer an opinion that the leg injury could have caused the defendant to stumble.
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Police officers in New Jersey use a device known as the Alcotest to determine a person’s blood alcohol content (BAC) in cases of suspected driving while intoxicated (DWI). The model currently in use throughout the state, the Alcotest 7110 MKIII-C, is subject to numerous restrictions established by the New Jersey Supreme Court in 2008. The New Jersey Attorney General recently announced plans to test a newer model, the Alcotest 9510, in some areas of the state. While the Alcotest 9510 has features that appear more “high-tech” than the 7110, its scientific reliability is far from established. The 7110’s reliability is still questionable in many cases, so switching to a new device is sure to be contentious.

What Is the Alcotest?

“Alcotest” is a brand name that belongs to Dräger, a company that manufactures a variety of devices used in healthcare, law enforcement, and other areas. Alcotest products include handheld devices, similar to a Breathalyzer, that provide fast BAC readings from breath samples, and larger breath-testing devices like the Alcotest 7110 that are not portable.

Police bring DWI suspects to the police station for testing by an officer who is certified to operate the Alcotest 7110. The 2008 New Jersey Supreme Court decision, State v. Chun, established procedures that police must follow in order to ensure the best chance for accurate results. For example, police must observe the suspect for twenty minutes before collecting a breath sample. During that time, the suspect must not place anything in their mouth that might interfere with the test. If anything enters the person’s mouth, even by burping, the twenty-minute clock must restart.
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In New Jersey, driving while intoxicated (DWI) is a serious offense that can result in significant penalties. A conviction for DWI results in a suspension of your driver’s license, as well as a fine and the possibility of jail time. The state has to follow a lengthy process before the case gets to the point at which you could face a conviction. This process can seem overwhelming to many people. An experienced DWI attorney can help you understand how the process works and what you may do to assert your rights. The following is an overview of what happens during a typical New Jersey DWI arrest.

Investigation at the Scene

A traffic stop is one of the most common ways in which a DWI case begins. A police officer might see a car driving erratically and suspect DWI. They might pull someone over for another traffic violation, such as running a red light, and suspect DWI based on factors like the driver’s behavior or the smell of alcohol.

The officer must have probable cause to suspect a driver of DWI before they may proceed further with an investigation. They may ask a driver questions about whether they have had anything to drink. They may also ask the driver to perform certain field sobriety tests (FSTs). A driver can refuse to perform the FSTs, but that most likely will not stop the officer from placing them under arrest.

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New Jersey’s laws dealing with the offense of driving while intoxicated (DWI) say a great deal about impairment by alcohol, but far less about impairment by other substances. The statute makes it a motor vehicle offense to drive “while under the influence” of alcohol, with blood alcohol concentration (BAC) of 0.08 percent, or while under the influence of a “narcotic, hallucinogenic or habit-producing drug.” This last category is ill-defined, especially when compared to the vast body of law dealing with alcohol. New Jersey courts may accept testimony regarding impairment by drugs even in the absence of evidence of any specific drug in a sufficient amount to cause impairment. Understanding how New Jersey law deals with “drugged driving” is critical to mounting a defense.

State law identifies two types of DWI involving alcohol. Operating a vehicle while “under the influence of alcohol” constitutes DWI, but requires the state to prove the existence of alcohol’s “influence” over a defendant. If a defendant had BAC of 0.08 percent or more, state law presumes that they were under the influence. This is known as DWI per se. Courts have developed an extensive set of rules surrounding DWI allegedly caused by alcohol, especially when breath testing is involved.

We were part of a landmark 2008 decision by the New Jersey Supreme Court, State v. Chun, which established procedures and requirements for the admissibility of BAC evidence obtained from breath testing. It addressed the breath-testing device used by law enforcement around the state, known as the Alcotest. The state supreme court has reiterated the importance of the procedures set forth in Chun. In a 2015 decision, for example, it stated that any finding of guilt in a DWI per se case “is subject to proof of the Alcotest’s reliability.”
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New Jersey prosecutors can prove guilt in driving while intoxicated (DWI) cases by presenting evidence showing beyond a reasonable doubt that a person was impaired by alcohol or drugs while operating a vehicle. They can also prove guilt, at least with regard to impairment by alcohol, by showing that a person’s blood alcohol content (BAC) was at least 0.08 percent. Police can measure BAC using samples of a person’s breath or blood. For drugs other than alcohol, they must test blood or urine. Drug testing is far from a settled science, and false positives still occur quite often. DWI defense in New Jersey requires careful examination of evidence that supposedly shows positive drug test results or BAC above the “legal limit” of 0.08 percent.

State law requires drivers to submit breath samples for BAC testing. Anyone driving on New Jersey’s public roads is considered to have consented to breath testing. Refusal to submit breath samples is a motor vehicle offense that could be charged along with DWI. Blood and urine samples still require either a search warrant or a driver’s consent.

Police in New Jersey use a device known as the Alcotest to test breath samples for BAC. Unlike blood or urine samples, breath samples cannot be stored for later testing. The Alcotest is therefore designed to perform tests at police stations, not laboratories. A person blows into a tube, and the device subjects the breath sample to chemical reactions. The device requires frequent maintenance and careful calibration.
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Drivers in New Jersey are obligated by state law to provide breath samples to police when they suspect driving while intoxicated (DWI). Police throughout the state use a device known as the Alcotest to determine a driver’s blood alcohol content (BAC). We were involved in a case before the New Jersey Supreme Court in 2008, State v. Chun, which resulted in detailed rules for the use and maintenance of Alcotest devices. This includes a requirement of two separate breath tests. The New Jersey Appellate Division considered an appeal last fall from a DWI defendant who argued that the police did not follow the requirements set out in Chun. The court’s ruling addresses how precise police must be with regard to waiting between breath tests.

Prosecutors can prove, for the purposes of the DWI statute, that a defendant was under the influence of alcohol by presenting evidence of BAC at or above 0.08 percent. State law requires drivers to submit to breath testing, viewing the act of driving on New Jersey roads as giving implied consent. Refusal to provide breath samples upon request by police is a separate motor vehicle offense, punishable by a fine and driver’s license suspension.

The New Jersey Supreme Court’s ruling in Chun addressed numerous concerns about the Alcotest device’s accuracy and reliability. The court found that police must collect at least two samples, by which the driver exhales into a tube connected to the device. A special master appointed by the court noted the potential for contamination during the time between a driver submits their first breath sample and their second. To account for this, the device’s software locks everything down for two minutes to give the machine time to clear out the first breath sample.

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New Jersey’s driving while intoxicated (DWI) statute gives prosecutors two methods of establishing that a defendant was too impaired to operate a vehicle legally. They can introduce evidence indicating that the defendant’s behavior and appearance at or near the time they were driving were consistent with intoxication due to alcohol or drugs. Prosecutors may also prove intoxication by showing that a defendant’s blood alcohol content (BAC) was above a certain level. What is BAC, though? Simply put, it is a measurement of how much alcohol is present in a person’s body. How police measure BAC is often a matter of controversy, so a New Jersey DWI attorney’s knowledge of how state law uses BAC is important to understanding how to defend against DWI charges.

BAC in New Jersey DWI Law

The DWI statute defines the offense as either:
1. Driving “while under the influence of” drugs or alcohol; or
2. Driving with BAC of at least 0.08 percent.
With evidence that a defendant had BAC of 0.08 percent or more, the state does not necessarily have to provide evidence of extrinsic details like bloodshot eyes or the odor of alcohol. New Jersey law presumes that a person was intoxicated, and therefore unable to drive, when their BAC was above the “legal limit.” This is often known as per se DWI.

State law requires every driver to submit to breath testing to determine BAC, and makes refusal a separate motor vehicle offense. A defendant can challenge the admissibility of the state’s BAC evidence based on a 2008 decision by the New Jersey Supreme Court, which established procedures that police must follow to calibrate and maintain the Alcotest devices used to perform breath tests.

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New Jersey prosecutors can use evidence of blood alcohol content (BAC) to prove that a person committed the offense of driving while intoxicated (DWI). Under state law, driving a vehicle on a public road implies consent to breath testing to determine BAC. Refusal to submit to breath testing is a separate motor vehicle offense. Law enforcement began using a device known as the Alcotest in 2005, and it is now the standard device throughout the state for BAC testing. Police must follow specific procedures regarding maintenance and calibration of these devices, as set forth in a 2008 ruling by the New Jersey Supreme Court. A decision by the court in late 2018 called over 20,000 New Jersey DWI cases into question based on falsified maintenance records. In June 2019, the Appellate Division cited that decision when it voided the conviction in one of the affected cases. If you have been stopped in New Jersey and asked to submit to breath testing, it is important that you contact a New Jersey DWI attorney as soon as possible to protect your rights under the law.

Under New Jersey law, BAC of 0.08 percent or higher creates a presumption that a person was under the influence of alcohol. This is known as per se DWI. Prosecutors can also establish that a person was impaired by alcohol through the “observational method.” This typically involves police officers’ testimony about their observations of a defendant’s appearance, behavior, and performance on field sobriety tests.

The New Jersey Supreme Court’s 2008 ruling established procedures for calibrating the Alcotest device, which requires careful maintenance to ensure accurate results. Police must calibrate the devices on a regular basis, and must follow standards set by the National Institute of Standards and Technology (NIST) when doing so. They must keep records of these calibrations, and must introduce those records as evidence along with BAC test results in DWI cases.

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