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If you were arrested for a New Jersey DWI, and you submitted breath samples at the police station, your breath testing was done on a Draeger Alcotest 7110 MKIII-C machine. There are many components to a DWI arrest, and it is important to understand how each part can be challenged. For example, if the machine was not calibrated properly, the breath test results can be suppressed, or thrown out.

Calibrating the machine involves running several tests on it with different alcohol “simulator” solutions. The solutions must be heated to 34 degrees Celsius, plus or minus 0.2 degrees. This temperature is supposed to simulate the temperature of human breath, however, studies have demonstrated human breath to be closer to 35 degrees. This difference in temperature can cause more than 6% error in the ultimate breath test result.

Appropriate temperatures are determined using an external NIST traceable temperature probe. NIST is the National Institute of Standards and Technology, which establishes and maintains basic international standards of measurement. The temperature probe is used to ensure the proper temperature of the solutions just before the calibration of the Alcotest.

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New Jersey Refusal / DWI law is complex, but it has just been clarified by the New Jersey Supreme Court in a case called State v. Ciancaglini, decided January 19, 2011, favoring individuals who have prior Refusal convictions who then get a subsequent DWI conviction.

The case also illustrates that lower courts can be wrong in their assessment of an issue, and appeals must be taken in order to correct the errors made and reverse the conviction or legal issue.

Ciancaglini had a prior DWI in 1979 and then a conviction for Refusal in 2006. In 2008, she was convicted of DWI, and the Municipal Court sentenced her as a third offender, based on changes in the case law from a few years earlier. She then appealed to the Law Division, which agreed with her that the law precluded the Refusal conviction to be counted against her DWI sentencing, and sentenced her as a first offender, giving her the benefit of the 10 year step down rule between her 1979 conviction and the current 2008 conviction. The State then appealed, and the Appellate Division reversed the Law Division, and held that she should be considered a third offender based on the change of law in a case called State v. Cummings.

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New Jersey DWI breath testing cases are complex, especially due to the new machine being used in New Jersey, the Draeger Alcotest 7110 MKIII-C. While this machine has been held to be reliable by the New Jersey courts, there are still significant issues to challenge regarding the machine and overall breath testing for New Jersey DWI arrested drivers. You just have to know what to look for, and what to ask for to review, to assess your challenge to the machine and establish your defenses.

Breath test results are generally admissible in evidence when the machine is shown to be in proper working order, when the breath test is shown to have been administered by a qualified operator, and the machine was used in accordance with accepted procedures.

It is the job of the defense attorney to investigate these areas. This is done through a process called “discovery”, where the defense seeks records regarding the machine, the arrest, and anything else relevant to the arrest and defense of the case from the State. This is done through a letter request to the prosecutor, copied to the police department and the Court Administrator. Our courts have said that “inquiry regarding these facts is extremely material.” Information concerning the conditions under which the tests were held, the machine operator’s competence, the particular machine’s state of repair and identification and documentation regarding the machine used for defendant’s tests are all relevant inquiries.

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I represented the lead defendant in State v. Chun, the case that has set the standards and procedures for DWI breath testing in New Jersey. So, a recent decision in a case interpreting Chun seems particularly ironic to me, since it highlights the State’s failure to adhere to the New Jersey Supreme Court’s requirements that the State change the make-up of the Alcotest®, the new breath testing machine in New Jersey.

In March 2008, the Supreme Court ruled in Chun that the State has to calibrate the Alcotest® every six months. Prior to Chun, calibration occurred every twelve months. While the Court determined that the Alcotest® is scientifically reliable, the Court left open challenges to the operability of each Alcotest®, that is, whether the Alcotest® machine that was used to test the subject was operating properly and as expected at the time of the testing. This allows for a wide array of challenges that are possible in each New Jersey DWI case by a skilled New Jersey DWI defense attorney.

This new case from the Appellate Division, State v. McConnell, says that failure to recalibrate an Alcotest® machine within the 6 month period does not cause the readings to be automatically thrown out.

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When I speak with prospective clients who have been charged with Refusal to Submit to Breath Testing in a New Jersey DWI/DUI, I often hear, “How can I be charged with Refusal? I blew into the machine several times!”

If you have been charged with Refusal, and if you attempted to blow into the Alcotest®, the new breath testing machine in New Jersey DWI matters, you probably have a good defense to that charge. That’s important, because, on a first alleged offense, the suspension for Refusal is much greater than the DWI charge. On a first Refusal, the license suspension is 7 – 12 months, and the suspension on the DWI is 3 months.

Getting rid of the Refusal charge makes the DWI/DUI more defensible. Not only is there one less serious charge to defend, there is no longer an inference that you refused because you were drunk. There is actually a case that says that if you are convicted of Refusal, the judge can infer that you refused because you were, in fact, intoxicated. See State v. Tabisz.

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Because I was involved in State v. Chun, the case that has defined DWI defense and prosecution throughout the state of New Jersey, I have been fortunate to learn a great deal about the new breath testing machine in New Jersey, the Alcotest® 7110 MKIII-C. I have had the pleasure of passing on some of that knowledge to other attorneys by speaking at local and national seminars on the technical and scientific defenses related to the Alcotest®.

This video is from a New Jersey statewide presentation on Alcotest® defenses. I have given other presentations to attorneys at national speaking engagements in New Orleans, Dallas, Las Vegas, and in Wisconsin and Connecticut.

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If you are convicted of a first offense New Jersey DWI/DUI, and you blew 0.15% or higher, or if you are a second or greater alleged New Jersey DWI/DUI offender, you will have to install an ignition interlock device on the car you primarily drive, if you are convicted.

If you are convicted of Refusing to Submit to Breath Testing, first offense included, you must install an interlock. So, even on a first offense, where you are charged with the DWI, where there is no reading, if you are convicted of the Refusal, you must install the interlock for 6 – 12 months.

This adds a significant expense to any conviction, as you must pay to install, maintain, and remove the ignition interlock device.

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If you are a third or greater alleged DWI offender in New Jersey, you are looking at mandatory 180 days in jail. Certainly, the best form of relief is to fight and win the current case. Otherwise, the only way to avoid jail if you are convicted is to seek “Post Conviction Relief” (PCR) from your prior convictions.

As a DWI lawyer in New Jersey, when I am representing a client with a pending third offense, I always review the prior convictions to see whether relief can be obtained from the prior courts in one of two ways:

  • Seeking to vacate the prior conviction altogether, based on constitutional errors by the judge, prosecutor, or defense attorney, and then starting the case from scratch to try to win the prior DWI/DUI completely; or
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In all states, including New Jersey, after a DWI arrest, a police officer must read a “standard statement” that contains a warning that the motorist must submit to breath testing when probable cause exists to believe the person is under the influence of alcohol.

The implied consent form includes some pretty alarming language that should make anyone hearing it sit up and take notice, even if the person is in a bit of an altered state. So, when I speak to clients who say that they don’t recall being read anything prior to being asked to submit to breath testing, I think that is a significant issue to explore.

For example, the most significant part of the statement sets forth the potential penalties for failure to submit to the testing:

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