Breath Testing

February 17, 2018

Evidence in New Jersey DWI Cases, Part 3: Consciousness of Guilt

Under the laws of New Jersey, driving while intoxicated (DWI) is a motor vehicle offense, rather than a criminal offense. A DWI proceeding still resembles a criminal case in many ways. Just as in a criminal case, prosecutors have the burden of proving every element of the offense of DWI beyond a reasonable doubt. DWI trials in New Jersey take place in municipal courts, with the municipal judge hearing the evidence and reaching a verdict. Prosecutors can introduce various forms of evidence, including certain actions and statements by a defendant that indicate a “consciousness of guilt.” Evidence that a defendant believed themselves to be guilty is not enough, by itself, for a conviction, but it can provide strong support for the state’s case. New Jersey courts have developed a series of rules regarding consciousness of guilt in criminal cases in general, and in DWI cases in particular.

Many criminal statutes include a particular mental state, known as mens rea, or “guilty mind,” as an element of the offense that the state must prove. Perhaps the most well-known example is the legal difference between murder and manslaughter. The offense of murder requires proof that a defendant acted with intent, meaning that they intended to kill their victim. Manslaughter involves reckless or negligent conduct by a defendant that results in someone’s death. Evidence of “consciousness of guilt” can support the state’s theory about a defendant’s “guilty mind.” The New Jersey Supreme Court reviewed some types of evidence of consciousness of guilt in a 1993 ruling, State v. Mann. Fleeing or escaping from custody for the purpose of “avoid[ing] accusation [and]…prosecution,” the court held, could be evidence of consciousness of guilt.

The New Jersey DWI statute’s definition of the offense makes no mention of mens rea. The state does not have to prove that a defendant intended to commit DWI, or even that they knew that they were impaired. Municipal judges may still infer consciousness of guilt from certain acts by DWI defendants. State law requires DWI suspects to provide breath samples to police, and it treats refusal as a distinct offense. In certain circumstances, refusal to submit to breath testing could also serve as evidence of consciousness of guilt. The New Jersey Appellate Division ruled that a defendant’s refusal was admissible as evidence in a DWI trial in State v. Tabisz in 1974. The New Jersey Supreme Court further affirmed this in 1987 in State v. Stever.

December 28, 2017

Evidence in New Jersey DWI Cases, Part 2: Chemical Testing

by Evan M. Levow

The state has the burden of proving guilt beyond a reasonable doubt in New Jersey driving while intoxicated (DWI) cases. A defense attorney’s job, in part, is to identify defects or deficiencies in the state’s case. DWI cases often require a considerable amount of documentation. Under the DWI statute, a person is guilty of DWI if they operate a vehicle while under the influence of alcohol or drugs, or while their blood alcohol concentration (BAC) is at least 0.08 percent. Police can determine BAC by testing samples of breath, blood, or urine. Breath testing is most common, followed by blood. Each type of testing requires proof that police followed specific procedures. The evidence must meet standards set by the New Jersey Rules of Evidence (NJRE), state law, and court decisions.

Authentication of Documents

In a courtroom, BAC evidence generally takes the form of written reports. In the case of breath testing, this is usually a series of reports generated by the Alcotest device. BAC results obtained from blood samples involve reports from the laboratory that performed the test. NJRE 901 requires authentication of all documents offered as evidence, meaning evidence that the document is, in fact, what the party offering it claims it is. This can be accomplished by having the person who created the document authenticate it in sworn testimony. Some documents are “self-authenticating,” as described by NJRE 902.

December 2, 2017

Alleged Mishandling of DWI Evidence by New Jersey Law Enforcement Official Could Affect Thousands of Cases

by Evan M. Levow

In order to convict someone of driving while intoxicated (DWI), New Jersey prosecutors must prove beyond a reasonable doubt that the person was impaired by alcohol or drugs. State law allows police to collect breath samples to test blood alcohol concentration (BAC) in suspected DWI cases. Police in New Jersey typically use a device known as an Alcotest, which analyzes breath samples provided by blowing into a tube. These devices require careful maintenance and calibration in order to produce reliable measurements. In October 2017, prosecutors in several New Jersey counties notified thousands of individuals with DWI convictions or pending charges that police may have mishandled BAC evidence in their cases. A specially appointed judge will determine whether any New Jersey DWI cases should be reviewed in light of this alleged misconduct.

New Jersey law creates an incentive for prosecutors to rely on BAC evidence. They can prove that a defendant was legally impaired through circumstantial evidence, such as an arresting officer’s testimony about a DWI defendant’s behavior and appearance. New Jersey’s DWI statute creates a presumption of impairment, however, when a defendant’s blood alcohol concentration (BAC) was 0.08 percent or higher at the time of, or within several hours of, their arrest. Penalties are also higher for first-time DWI convictions if the defendant’s BAC was 0.10 percent or greater.

The Alcotest device purports to measure the concentration of alcohol in a person’s blood by performing tests on samples of that person’s breath. This requires a certain amount of extrapolation using algorithms in the device’s programming. The device uses infrared technology and the process of electrochemical oxidation to test breath samples. This latter process is particularly sensitive to environmental factors like temperature and potential contaminants. The New Jersey Supreme Court’s 2008 decision in State v. Chun, in which we represented several appellants, established guidelines for the maintenance and calibration of these devices, as well as documentation to indicate when an Alcotest device was most recently serviced.

October 25, 2017

How Failing to Provide Enough of a Breath Sample Can Lead to a Refusal Charge in New Jersey

by Evan M. Levow

New Jersey’s driving while intoxicated (DWI) statute allows prosecutors to use several methods to try to prove that a defendant was too impaired to operate a vehicle. One of these methods requires test results showing that a defendant’s blood alcohol content (BAC) was 0.08 percent or higher, the so-called “legal limit” for DWI. This is the preferred method for most prosecutors, and New Jersey law helps facilitate the collection of BAC evidence. Refusal to submit to a breath test is a separate traffic offense alongside DWI, punishable by a fine and license suspension. Courts have expanded the scope of the refusal statute beyond merely refusing even to attempt to provide a breath sample. The Alcotest device used by New Jersey police to measure BAC requires a sizeable sample, and a refusal charge can result from not trying hard enough. The New Jersey Appellate Division reviewed this sort of situation recently in its decision in State v. Hernandez.

Under New Jersey law, anyone operating a motor vehicle on a public road is deemed to have given their consent to providing a breath sample to police upon suspicion of DWI. This “implied consent” law overrides any concerns about Fourth Amendment rights against warrantless searches or Fifth Amendment rights regarding testifying against oneself. A conviction for a first refusal offense can result in a license suspension for seven months to one year. For a second offense, the period of suspension is two years. A 10-year license suspension comes with a third or subsequent conviction. Fines range from a minimum of $600 for a first offense to a maximum of $2,000 for a third or subsequent offense.

New Jersey police use a device known as the Alcotest 7110 MK III-C to measure BAC. A New Jersey Supreme Court decision from 2008, State v. Chun, established various standards and procedures for the Alcotest. The device requires a minimum sample size to ensure consistency and, to the greatest extent possible, accuracy. Most people must breathe into the device enough to produce 1.5 liters of air, although for women over the age of 60, this minimum amount is lowered to 1.2 liters. They must also breathe into the device for at least four and a half seconds, something that may not be possible for some people. Courts have attempted to distinguish between people who are incapable of providing a sufficient breath sample and those who could provide a sample but do not do so.

October 24, 2017

Does the Legal Presumption of Intoxication in Some DWI Cases Violate Due Process?

by Evan M. Levow

Driving while intoxicated (DWI) is a traffic offense, rather than a criminal offense, under New Jersey law. Most—although not all—of the protections offered in criminal prosecutions by the U.S. and New Jersey Constitutions apply to DWI cases. The guarantee of due process in legal proceedings, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, is one of the most important protections. New Jersey’s DWI statute creates a legal presumption of intoxication for anyone whose blood alcohol content (BAC) is 0.08 percent or higher. The New Jersey Appellate Division discussed whether this violates due process back in 1959, in State v. Protokowicz. Despite its age, the case still has relevance to DWI defense today.

The term “due process” generally means the right to fair legal proceedings. The U.S. Constitution states twice that no one may “be deprived of life, liberty, or property, without due process of law.” Courts have interpreted the Fifth Amendment’s Due Process Clause to apply to the federal government, while the Fourteenth Amendment applies to the states. The New Jersey Constitution also provides for due process in Article I, section 1, stating that “[a]ll persons…have certain natural and unalienable rights,” including “those of enjoying and defending life and liberty, [and] of acquiring, possessing, and protecting property.”

The New Jersey DWI statute defines the offense in two ways. A person commits the offense if (1) they “operate[] a motor vehicle while under the influence” of alcohol or drugs, or (2) drive with a BAC of 0.08 percent or higher. In the second type of DWI, BAC evidence creates a presumption that a defendant was “under the influence.” State laws requiring drivers to submit to breath testing facilitate the collection of BAC evidence. Since this presumption seems to put a DWI defendant at a disadvantage from the very beginning, does it pose due process problems?

October 18, 2017

Breath Testing in New Jersey DWI Cases and the Right Against Self-Incrimination

by Evan M. Levow

The Fifth Amendment to the U.S. Constitution protects the right against self-incrimination. The extent of this protection is not always clear, however, and the right to refuse to provide information to police has limits. In driving while intoxicated (DWI) investigations, suspects are often asked to provide breath samples for chemical testing. The evidence obtained from breath testing can provide the state with nearly all of the information it needs to bring a DWI charge. In New Jersey DWI cases, providing a breath sample is actually mandatory under the law. Is this the sort of self-incrimination covered by the Fifth Amendment? A long line of court decisions says that no, it is not, but understanding why may be helpful in understanding the rights a DWI defendant does have.

Under New Jersey law, a refusal to submit a breath sample for chemical testing, upon a request by police, is a motor vehicle offense punishable by a fine and a driver’s license suspension. New Jersey courts have imposed strict requirements for submitting to breath testing. Anything other than unambiguous agreement could constitute refusal. A 2007 decision from the New Jersey Appellate Division, State v. Spell, held that a DWI suspect has no right to request testing after they have already refused. In that case, the defendant claimed he was having chest pains and could not provide a breath sample, but he told an officer he was feeling better after a hour. He offered to submit a sample at that time, but the officer “declined because defendant had already refused.”

The Fifth Amendment states that “no person…shall be compelled in any criminal case to be a witness against himself.” This applies to sworn testimony in a court of law, which is where we get the term “pleading the Fifth.” It also protects the “right to remain silent” during custodial police interrogations, which generally means after a person has been placed under arrest and advised of their rights. In most situations, a person must affirmatively state that they are invoking their right against self-incrimination, or else police may continue questioning them.

October 17, 2017

What Statements by a New Jersey DWI Defendant Are, and Are Not, Admissible in Court?

by Evan M. Levow

When police detain and question a person on suspicion of driving while intoxicated (DWI), the Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution protect that person’s rights. The Fourteenth Amendment officially extended most of the Bill of Rights to state-level law enforcement, meaning that local police are subject to the same constraints as the federal government. In the context of New Jersey DWI cases, the Fourth Amendment states that police cannot detain someone, such as by pulling over their vehicle, without reasonable suspicion of wrongdoing. The Fifth Amendment states that a defendant cannot be forced to testify against themselves, and limits the state’s ability to use certain statements made by defendants against them in court. Exactly when this right against self-incrimination applies has been a matter of ongoing dispute in the courts. The U.S. Supreme Court has made several rulings specifically addressing incriminating statements in DWI cases.

The landmark U.S. Supreme Court case addressing the right against self-incrimination during police interrogation is Miranda v. Arizona, decided in 1966. Information obtained by police from a person, after they have invoked their “right to remain silent” during “custodial interrogation,” is inadmissible in court. While people can refuse to answer police questions at almost any time, Miranda obligates police to advise people of their rights in specific scenarios. Many subsequent court decisions have found that Miranda only applies once a person has been formally placed under arrest and read this list of rights. Whether a person is “under arrest” during a traffic stop is a complicated question.

Police do not typically give Miranda warnings to DWI suspects at the beginning of a traffic stop. Still, officers may ask questions of a driver, and ask the driver to perform field sobriety tests. With some exceptions, courts do not consider this to be a “custodial interrogation” within the meaning of Miranda. Police are therefore not obligated to advise people of their Miranda rights at this point, placing the burden of invoking the right against self-incrimination on the driver.
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September 6, 2017

Defendant in New Jersey DWI Case Challenges Conviction of “Per Se” DWI

by Evan M. Levow

New Jersey law allows prosecutors to offer evidence of driving while intoxicated (DWI) in two ways. One way relies on evidence like testimony by police officers about outward signs of intoxication, including appearance and behavior. The second method involves evidence that a defendant’s blood alcohol content (BAC) was above a certain level. This is often known as “per se” DWI because the BAC evidence creates a presumption that the defendant was impaired by alcohol. A DWI defense strategy should take both methods of proving DWI into consideration. Defending against a per se DWI charge in New Jersey often involves challenging police equipment more than police witnesses. The Appellate Division recently considered an appeal of a per se DWI conviction in State v. Page.

The DWI statute defines the offense as driving either “while under the the influence” of alcohol or drugs or with a BAC of at least 0.08 percent. The latter definition constitutes per se DWI. It does not necessarily require any evidence other than the defendant’s actual or imminent operation of a motor vehicle and the defendant’s BAC at or near that time. It is possible to obtain an acquittal or dismissal in a DWI case even with evidence of a BAC over 0.08 percent. It is also possible, however, for the state to obtain a conviction without BAC evidence or with a BAC of less than 0.08 percent.

New Jersey courts have established a variety of procedures and protocols that police must follow in an effort to ensure the accuracy of BAC test results. Police in this state commonly use a device known as the Alcotest to measure BAC. The defendant must provide a breath sample by blowing into a tube. The device then measures the alcohol content of the sample. The Alcotest requires regular maintenance and careful calibration, and it can produce inaccurate results without either of these. A 2008 decision by the New Jersey Supreme Court, State v. Chun, establishes maintenance and record-keeping protocols that police must follow for Alcotest results to be admissible in court. It also requires police to observe a DWI suspect for 20 minutes before administering the test.

August 20, 2017

U.S. Supreme Court Rules on Warrantless Breath and Blood Tests in DWI Cases

by Evan M. Levow

Evidence of a driver’s blood alcohol content (BAC) is a critical tool for prosecutors in driving while intoxicated (DWI) cases. Under the New Jersey DWI statute, a driver with a BAC of at least 0.08 percent is presumed to be impaired. BAC evidence can come from tests on a sample of a driver’s breath or blood. Because of the importance of BAC evidence in DWI cases, New Jersey makes it a separate traffic offense to refuse to submit a breath sample, punishable with a fine and license suspension. Some states make refusal a criminal offense, meaning that it could result in jail time, and require submission to both breath and blood testing. The U.S. Supreme Court considered a Fourth Amendment challenge to criminal refusal statutes last year. Although New Jersey’s refusal statute does not impose criminal penalties or require blood testing, the court’s ruling in Birchfield v. North Dakota is important for DWI defendants all over the country.

Anyone who drives on public roads in New Jersey has, according to state law, given their implied consent to breath testing in a DWI investigation. This allows the state to charge anyone who refuses to submit a breath sample with a traffic offense. New Jersey law does not require drivers to submit to blood testing, however, unless police obtain a warrant. The defendants in Birchfield challenged statutes in Minnesota and North Dakota that impose criminal penalties for refusal. The North Dakota law included both breath and blood samples.

The Fourth Amendment generally prohibits “searches and seizures” without a warrant supported by probable cause to believe that a search will yield evidence or contraband. Numerous courts have held that breath and blood testing are “searches” within the meaning of the Fourth Amendment. Courts have also recognized exceptions to the warrant requirement, however. The “search incident to arrest” exception, for example, allows police to search a person during an arrest. Police may also claim that “exigent circumstances,” such as the imminent destruction of evidence, made waiting to obtain a warrant impractical.

February 14, 2017

New Jersey Attorney General Seeks to Revise Alcotest Calibration Procedures Established in State v. Chun

by Evan M. Levow

Police departments throughout New Jersey use the Alcotest 7110 MKIII-c device to conduct breath tests on individuals suspected of driving while intoxicated (DWI) in order to determine a person’s blood alcohol content (BAC). Accuracy is critical for these devices, since state law imposes penalties based almost entirely on BAC.

State law creates two tiers of first-time DWI offenses based solely on BAC. A BAC of 0.08 percent or above creates a presumption of impairment. For first offenders, penalties are greater if the BAC is at least 0.10 percent. Blood testing generally provides a more accurate BAC result than breath testing, but as the Chun decision notes, it presents “obvious practical and logistical problems.” Breath testing requires neither a warrant nor a medical professional. All police departments in this state have used the Alcotest since 2008, some since 2005. The device can only provide an “estimation of BAC,” based on the passage of alcohol from the digestive system to the circulatory and then respiratory system. It uses two methods to measure alcohol concentration, which Chun describes as “infrared (IR) technology and electric chemical (EC) oxidation in a fuel cell.” The EC measurement is the more controversial of the two.

The Alcotest’s EC technology creates a catalytic reaction that oxidizes alcohol in the breath sample, creating an electrical charge that the device can measure. The accuracy of this measurement requires careful maintenance. A “simulator solution” used to calibrate the device must be maintained at a precise temperature. Chun requires the use of a thermometer that meets standards set by a federal agency, the National Institute of Standards and Technology (NIST).