In a DWI prosecution under N.J.S.A. 39:4–50 and 39:4-50(a) police must observe an individual uninterrupted for 20 minutes. As simple as it may seem to observe an individual for an uninterrupted period of 20 minutes, it is frequently the case that the State has a hard time establishing that this procedural requirement was met. Our attorneys have on multiple occasions been able to prove that the twenty-minute observation period was broken and the results of the Alcotest, commonly referred to as the breathalyzer, have as result been suppressed.
In New Jersey if you’re arrested on suspicion of driving while intoxicated (DWI) there are certain procedural safeguards that must be obeyed by law enforcement. One of the most essential safeguards in DWI defense as dictated by the New Jersey Supreme Court is that law enforcement must observe you for 20 minutes before a Alcotest, commonly referred to as a Breathalyzer, can be administered.
Law enforcement operating the Alcotest must wait 20 minutes to ensure no outside samples interfere with the performance of the test and provide overestimated readings. As stated by the New Jersey Supreme Court in State v. Chun, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person’s mouth, the operator is required to begin counting the twenty-minute period anew. State v. Chun, 194 N.J. 54 (N.J. 2008).
In addition to the twenty-minute wait, operators must also follow a careful procedure was administering the test. The operator must sample the air in the room, known as a “blank air test” or “control test” to ensure the breathalyzer is functioning properly and has not been tainted with any outside material.
If the results of the control test are within the parameters mandated, the operator must proceed to collect a breath sample by first attaching a new, disposable mouthpiece and removing cell phones and any electronic devices from the area.
The first breath sample is taken after the operator states “to the test subject: “I want you to take a deep breath and blow into the mouthpiece with one long, continuous breath. Continue to blow until I tell you to stop. Do you understand these instructions?”
The operator will wait for a sound alert as notice that a viable breath sample has been taken. The Alcotest will lock for 2 minutes before a second test will be administered. This is known as the lockup period. The Alcotest device gives the operator three minutes to collect each sample. If 3 minutes runs without the samples the operator has 3 options:
1) Stop the test
2) Report a refusal resulting in a potential 7-month loss of license in addition to other penalties
3) Continue with the test by obtaining another sample.
A maximum of eleven attempts to collect two breath samples. After the eleventh failed test, the only two options permitted by the device are to terminate testing or report refusal.
Using a complex formula, the breath test results must fall within a certain range to be viable. If the results are not in the accepted range the operator may continue for 11 attempts before being required to either terminate testing or report a refusal.
In addition to this procedure that must be obeyed the New Jersey Supreme Court mandated that admissibility of the Alcotest results be conditioned on the following:
1) Certification of the operator of the Alcotest
2) Alcotest was functioning properly and in working order and had been inspected according to procedure
The burden of proof to show that the procedures conditioning admissibility were complied with rests with the State and must be demonstrated by clear and convincing evidence. Thus, a defendant is not obliged to present proof that he did vomit or regurgitate in order to suppress the Alcotest results, in the absence of affirmative proof from the State that defendant was continuously observed. Rather, the State must present affirmative proof that an operator actually observed the defendant. State v. Filson, 409 N.J. Super. 246 (Law Div. 2009) In New Jersey, the 20 minutes may begin at the station or immediately after the arrest provided that an officer can testify that the observation was continuous and uninterrupted. If the observer takes a break and leaves the room during the twenty-minute observation period, then the twenty- minute observation must restart. The operator of the Alcotest does not have to be the same person conducting the twenty-minute observation. As long as an officer is present during the twenty- minute period the results will stand. Furthermore, the observer does not have to be qualified to operate the Alcotest.
If you have been charged with a violation of with driving while intoxicated (DWI), N.J.S.A. 39:4–50(a) call the attorneys of Lubiner, Schmidt & Palumbo for a free consultation concerning the merits of your case as well as potential defenses that could be raised.