New Jersey DWI Attorney Blog

As a New Jersey DWI lawyer that only practices DWI law and nothing else, the first question I am often asked is, "What is your fee?" I don't like that question, because it doesn't take into account the reality of why a person is searching for a lawyer to defend one of the most serious charges that the person will likely ever face.

My answer is, "It depends on what you mean by 'affordable'."

You can spend anywhere from $750 to $7500 in initial fees. Chances are that if you are on a limited budget, say a couple thousand, what you define as affordable, may end up costing you a lot more in the end. For instance, if you hire someone that doesn't have the knowledge or skill to really fight your case, what are you spending your money on? If you are convicted, as a first offender, you will not only pay the $700 or so in court costs, but there might be an interlock requirement for your car depending on your breath reading, which will cost you more than $1000.00; you will be surcharged by the State $3000, and your insurance company will separately surcharge you anywhere from $3000 to $10,000 or more over three years.

If you hire someone who has the knowledge, ability and fortitude to really fight for you, and if you are successful, you can save suspension time, get rid of the interlock, or even get rid of the DWI charge. Then again, you might lose, and you certainly will have spent more on a lawyer who knows his/her stuff than someone who may just be planning to hold your hand, walk in with you and hope for the best. There are no guarantees. However, you want to make sure you hire the best lawyer you can to obtain the best result possible.

As a New Jersey DWI lawyer who vigorously fights for my clients, I am honored to have been selected to Best Lawyers in America® for the fifth consecutive year. Today, I received the following email from Steve Naifeh, President of Best Lawyers:

"Congratulations on having been selected by your peers for inclusion in the 2012 edition of The Best Lawyers in America® in the practice area of DUI/DWI Defense. For nearly three decades, Best Lawyers has been regarded - by both the profession and the public - as the definitive guide to legal excellence in the United States.

"Selection to Best Lawyers is based on an exhaustive and rigorous peer-review survey (comprising more than 3.9 million confidential evaluations by your fellow top attorneys) and because no fee or purchase is required to be listed, inclusion in Best Lawyers is rightly considered a singular honor. Our annual, advertisement-free publication has been described by The American Lawyer as "the most respected referral list of attorneys in practice."

"The Best Lawyers in America also reaches the largest and most targeted audience of any peer-review listing in the legal profession. Best Lawyers lists appear regularly in Corporate Counsel magazine, which reaches more than 88,000 general counsel. Excerpts from our lists also appear in The Washington Post, The Los Angeles Times, New York magazine, and more than 85 other regional and city magazines around the world, reaching more than 17 million influential readers.

"As you may know, Best Lawyers collaborated this year with U.S.News & World Report, the leading rankings publication in the U.S., to rank U.S. law firms. As a result, the Best Lawyers search engine now also appears on USNews.com, which has 7 million unique visitors each month.

"Again, congratulations on being selected by your peers to be included in Best Lawyers."

I appreciate the honor mostly because it is a peer reviewed selection. I am grateful and humbled that my colleagues, adversaries and other DWI lawyers have chosen me to be part of the select list.

Thank you.

The most important case in New Jersey DWI history is State v. Chun, decided in 2008, which set the standards for DWI defense and prosecution for breath testing cases statewide. Despite significant evidence to the contrary, the New Jersey Supreme Court in Chun determined that the new Draeger Alcotest 7110 MKIII-C breath testing machine was scientifically reliable.

In Chun, the reliability of the machine was based on the safeguards of the testing procedure, one of which was an apparatus known as an Ertco-Hart Digital Thermometer. This thermometer insures that the temperature of the various simulator solutions used for calibration of the Alcotest during the control and linearity testing are at the required 34.0 degrees Celsius, with a tolerance of plus or minus 0.2 degrees.

These Ertco-Hart digital thermometers were calibrated by Draeger, which also supplied a NIST (National Institute of Standards and Technology) Certificate of Traceability with each calibration. Draeger, however, decided it would no longer produce the certificates of calibration, and the Ertco-Hart digital thermometer used by the State is no longer manufactured. As a result, the required calibration had to be done with a different digital thermometer.

A digital thermometer from Control Company was chosen based on criteria set by the director of the Office of Forensic Sciences.

Because this thermometer from Control Company was different from the Ertco-Hart thermometer, and because the Alcotest was found to be scientifically reliable with the Ertco-Hart digital thermometer as one of it's calibrating components, defendants across New Jersey began challenging the results from the Alcotest based on this change of components.

A case called State v. Holland addresses these issues, and was recently decided by the Law Division in Monmouth County on August 24, 2011. The opinion from the Law Division will be used by the Appellate Division to establish the final ruling on the use of the Control Company digital thermometer in place of the Ertco-Hart unit. The Law Division determined "that the Ertco-Hart and Control Company digital thermometers are comparable in all material respects and identical in the performance of the singular function required." Both thermometers "accurately read and report the temperatures of the simulator solutions during the Alcotest calibration process."

The Control Company certificate, in comparison to the Ertco-Hart certificate, does not have any "facial irregularity", as claimed. The Law Division found that it actually provides more information than the Ertco-Hart certificate provided by Draeger. The court found nothing to prevent it from being accepted as a proper foundational document regarding calibration of the digital thermometer as required by the Supreme Court in Chun.

It is safe to say that the Law Division's opinion ratifying the use of the Control Company digital thermometer will form the basis for the Appellate Division's ratification of the unit, thereby allowing Control Company's digital thermometer to be used for calibration of the Alcotest on a state-wide basis. The opinion from the Appellate Division will likely be rendered "forthwith".

This issue is but one of many that must be addressed in the context of assessing defenses to a specific charge of DWI in New Jersey. It is critical to seek the assistance of a qualified New Jersey DWI lawyer, who can determine how best to proceed in your case. DWI charges in New Jersey can be successfully challenged.

A New Jersey DWI stop, arrest or conviction for an an illegal immigrant involves special and significant concerns. The immigrant has no driver's license or other documents to establish the privilege to drive or to be in this country, and the arrest and conviction may result in his or her deportation.

According to an article in USA Today, published at http://www.usatoday.com/news/washington/2011-07-22-criminal-immigrants_n.htm, drunk driving arrests or convictions are resulting in an increasing number of deportations. Until recently, this was not as big of an issue for New Jersey DWI arrests, as a New Jersey DWI is considered a traffic offense and not a criminal offense. New Jersey is one of only two states to categorize DWI as a traffic offense.

However, depending on how Immigrations and Customs Enforcement (ICE) views the arrest, conviction and circumstances of the New Jersey DWI arrest, even a New Jersey DWI arrest or conviction could form part or all of the reasoning for ICE to commence deportation procedures. It is therefore extremely important to hire a qualified New Jersey DWI attorney to review your case and fight the charges against you. You should also consult with immigration counsel to determine the possibility or likelihood of deportation.

If the New Jersey DWI involves an accident or particularly a fatality, the likelihood of ICE intervention increases dramatically, and is almost a certainty. If a felony level conviction results from the DWI based assault by auto, that conviction will affect immigration status if it comes to the attention of ICE.

According to the USA Today article, the U.S. deported nearly 393,000 people last year. Of those, 27,635 had been arrested for drunken driving. An additional 13,028 were deported last year after being arrested on less serious traffic law violations. Most of the immigrants deported last year had committed drug-related crimes. They totaled 45,003. Drunken driving was third in the number of offenses last year.

ICE attempts to categorize each deported immigrant in its statistics based on the worst crime in the person's record. ICE says the statistics involve only people who have been convicted of a crime. This may be the loop hole that will not cause a New Jersey DWI conviction to result in deportation, since the record of a New Jersey DWI conviction is not reported as a crime. A New Jersey DWI conviction does not appear on an individuals criminal record as reported by the NCIC - National Crime Information Center.

In such a serious situation, it is best to challenge the evidence against you in the most appropriately aggressive way possible. Consult with an experienced New Jersey DWI attorney to evaluate the specific circumstances of your case.

Police departments in many towns in New Jersey are now utilizing portable hand held breath testing devices known as preliminary breath testers, or PBT's. A PBT can either report an actual breath test result in numerical format such as 0.08% breath alcohol, or it can simply show a positive or negative result, signifying whether alcohol is present in the breath or not.

The PBT's are generally supposed to be used at the end of the investigation, and not as the basis to continue an investigation. The theory is that once the officer confirms the presence of alcohol, any subjective evidence collected thereafter, such as field exercises administered to the suspect and interpreted by the officer, may be tainted by the positive result on the PBT. Therefore, PBT's are intended to be "confirmatory" devices once the officer has undertaken other subjective testing.

No one ever has to submit to a PBT roadside. The implied consent law, which states that a driver in New Jersey must submit to breath testing where an officer has reasonable suspicion that he or she is under the influence of alcohol, applies only to evidential breath testing on an approved machine, such as the Alcotest 7110 MKIII-C, which is the only approved evidential breath testing machine currently in use in New Jersey.

When asked to blow into the PBT, a suspect is not usually advised that he or she does not have to blow into the device. If you refused to blow into the device, you cannot be charged with "Refusal to Submit to Chemical Testing".

If the PBT shows a breath test result under 0.08%, and the officer believes that the individual is impaired, the officer may still arrest the driver. The arrest may be based on the officer's belief that, even though the driver is not over the "per se" limit of 0.08%, the individual's ability to operate the vehicle is still affected by alcohol. A conviction can be sought and obtained if it can be proven beyond a reasonable doubt that alcohol caused a deterioration of the driver's ability to operate the car. The officer also may believe that there are other causes of inebriation, such as a drug based intoxication, and will arrest based on the general observation of the driver, and then conduct more physical testing back at the police station. Urine or blood testing may be sought, as well.

An interesting issue arises when the driver submits to the PBT roadside, but then declines to submit to the breath testing in station. Technically, the driver must submit to the breath testing on the Alcotest machine in station, based on the implied consent law. If the driver does not submit, he or she will be given a separate charge of "Refusal". However, if the driver says or thinks, "I gave a breath test roadside, already. I failed that test according to the officer. Why would I want to submit again when I already did, and provide even more evidence against me." There could be confusion regarding the issue of submitting to the testing.

This issue and many others surrounding the use of the PBT should be evaluated by a qualified New Jersey DWI defense attorney. Never assume that you will be automatically convicted of all the charges against you.

As a New Jersey DWI defense attorney, I always review my client's prior convictions to determine which, if any, can be overturned or to determine if the effect of the conviction can be minimized for sentencing issues in the current pending case. I have written in this blog quite a bit about New Jersey Post Conviction Relief, or PCR, practice, because it is so important in the assessment of an alleged multiple offender's case.

A case that was recently decided by the Appellate Division in New Jersey, State v. Weil (decided July 5, 2011), outlines the PCR process and what is needed to seek relief from the courts.

Petitions for PCR must be filed in the court where the original conviction occurred. In a case called State v. Bringhurst, the Appellate Division stated that the time limit for filing a PCR petition in a DWI case could be relaxed from the general five year rule, since the prior conviction would "be of no moment unless and until there was a subsequent DWI conviction." If the prior conviction is more than five years old, the defendant has to establish that any delay in filing was not the result of neglect or some other disqualifying reason. In relaxing the time limitation, the court will consider the extent and cause of the delay, whether there is any prejudice to the State, and the importance of the claim.

The petitioner has to allege facts to establish relief in a written petition. Specifically, the petitioner has the burden of proving that he or she did not have notice of the right to counsel in the prior case. He has to demonstrate that he was prejudiced by being unaware of those rights, and if indigent, would have benefited from the notice by seeking counsel. A non-indigent defendant additionally must show that the lack of notice affected the outcome of the case.

The defendant in the recently decided Weil case was not successful in her argument to obtain relief. There was evidence that she did receive notice of her right to counsel in her 1994 case based on notations on the original tickets that were maintained by the original municipal court. She also did not explain why she waited sixteen years to seek relief.

It is critical to hire a qualified New Jersey DWI defense lawyer to fully review all aspects of your case, including your prior convictions. Failure to review prior convictions can result in significant lost opportunities in the present pending matter.

There are still significant opportunities to defend New Jersey DWI Refusal charges after the New Jersey Supreme Court's decision in State v. Schmidt on May 26, 2011. The most important thing to remember when addressing the defense of a refusal charge is, never assume that simply being charged with a refusal means that a conviction will automatically follow.

Understanding of the law and the individuals involved is key to attempting success in what appears to be a very difficult charge to defend.

Schmidt now states the general proposition that if you blew into the machine but didn't give a complete sample that the machine "accepted", you cannot claim that the officer should have then read you the second part of the implied consent warning as a defense to the charge. This doesn't mean, however, that you will automatically lose your case and suffer the consequences of a refusal charge.

If you can demonstrate facts and circumstances to the prosecutor, the police officer, and judge that show that you were not being obstinate, obstructionist, or generally difficult, you may be able to convince the justice system that the refusal charge should not stand against you. These facts or circumstances are specific to each situation, but might include physiological reasons why you could not submit an adequate sample of breath into the machine.

Perhaps you suffer from asthma, or you are a heavy smoker. Did you have a cold or upper respiratory issue? Your family doctor can test you for lung capacity, and the results of that testing can be used to demonstrate that you had an objective issue that prevented you from properly blowing into the machine.

You may have been so upset at the time that your anxiety kept you from breathing properly. While no one is comfortable in these situations, if you suffer from a pre-existing anxiety condition, you may be able to use that information to your advantage in a case like this.

All of this requires forensic activity by your New Jersey DWI lawyer to determine what defenses are available to you under the circumstances presented. You want to make sure that you are represented by someone who is appropriately aggressive in seeking to protect your rights and your future.

Success can be obtained in New Jersey DWI Refusal cases, under the right circumstances.

Until May 26, 2011, there was a defense to a refusal charge that you had attempted to blow into the machine, but the machine did not register or accept the breath sample. However, this is no longer a defense.

This is how the defense worked: Implied consent warnings are eleven paragraphs of written warnings read to you by the police officer in the police station prior to the breath testing. The warning states that if you do not submit to the breath testing you will be given a separate ticket for refusal with separate penalties from a DWI conviction. If you started to give a breath sample, but for any reason were unable to give a complete sample that the machine accepted, the officer would likely have charged you with refusing to submit to the testing. However, if the officer did not read the "Additional Statement" that is printed after the eleven paragraphs, then you would claim that you were not adequately warned at that point that failure to complete the testing would result in a refusal charge.

This defense was intuitively sound, since you had not actually refused to give a breath sample, and had in fact provided a sample. The officer should have separately advised you that you would be subject to a refusal charge where you had already blown. Then, you would have been on notice to continue to attempt to blow into the machine, rather than stop, subjecting yourself to a separate suspension for refusal.

The New Jersey State Supreme Court in State v. Schmidt put that defense to rest. Mr. Schmidt gave three breath samples and then was unable to complete the testing. The court stated that because Mr. Schmidt "unequivocally consented" to the breath test, his later failure or inability to complete the breath testing did not render his earlier consent ambiguous or conditional, requiring additional warnings to be given to him.

In other words, once you submit to the breath testing, you have to complete it.

However, this may not be absolute. There are defenses to a refusal charge. If you can establish breathing difficulty, such as asthma or diminished lung capacity, you may still have a defense to a New Jersey DUI refusal charge. The court's action was aimed at situations where individuals were seeking to "defeat" the testing process.

Levow & Associates has had success with refusal defenses, such as this. It is important to hire a qualified New Jersey DWI DUI attorney to evaluate your case to see what defenses you may have.

New Jersey DWI cases are subject to the sixty day guideline for case resolution in the New Jersey Municipal Court system. However, it is extremely difficult, if not unlikely to resolve a contested DWI in that amount of time.

The guideline is just that -- a guideline. It is not a requirement, and courts are supposed to be fairly liberal in their interpretation of the rule. Some courts are very strict and press the case forward to the detriment of the State or the defendant, but this is rare, as the courts understand that the cases are supposed to be decided on their merits rather than a calendar. However, if the 60 days have passed and there is an unwarranted delay, the court should move the case forward. In all circumstances, the defendant's constitutional rights must always be considered and protected.

Once discovery (police records, video, etc.) has been requested, it must be provided on an expeditious basis. Often, while some discovery is provided, not everything that is requested or required is given. In that situation, one of the primary ways to enforce defendant's rights is to file a Motion to Compel Discovery. Once the court enters an order compelling the State to provide discovery by a date certain, if the material is not provided by that date, a Motion to Dismiss for failure to supply the court ordered discovery should be filed.

It is also critical to assert your right to a speedy trial at the beginning of your case. If the State or the court does not move your case in a timely fashion, you can file a Motion to Dismiss based on speedy trial grounds.

The constitutional standard for a speedy trial was established by the United States Supreme Court in a case called Barker v. Wingo (1972), and applied by our New Jersey Supreme Court in State v. Szima (1976).

In Barker, the Court set forth a "balancing test ... in which the conduct of both the prosecution and the defendant are weighed" to aid in determining when a defendant's right to a speedy trial under the Sixth Amendment has been violated. The Court identified four factors that should be examined:

• length of delay


• the reason for the delay


• the defendant's assertion of his right


• and prejudice to the defendant

Most New Jersey DWI automobile stops occur when a police officer has personally viewed a traffic violation. The officer then reports the violation in his or her report, and this is then the subject of scrutiny as to whether the officer had the requisite "reasonable articulable suspicion of criminal activity" required to make a stop based on constitutional law, i.e. the Fourth Amendment.

More and more, since almost everyone has a cell phone with them on the road, stops are often being made based on citizen tips -- other drivers on the road who view erratic driving and dial 911 or the local police department. These are particularly interesting cases that add an additional layer to what your qualified New Jersey DWI lawyer should be doing in your case.

The law on anonymous tips, is that the tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity. The analysis has changed, however, with 911 calls. The New Jersey Supreme Court stated that a 911 caller "place[s] his anonymity at risk by virtue of using the 9-1-1 system" because the records required to be made of such calls "provide the police with an ability to trace the identity of the caller in a manner that enhances his reliability." State v. Golotta, 178 N.J. 205, 225-26 (2003). The Court said that such a call should not be " 'viewed with the same degree of suspicion that applies to a tip by a confidential informant.'

The 911 tip call becomes reliable, according to the Court, as long as the caller provides a sufficient quantity of information, such as an adequate description of the vehicle, its location and bearing, or 'similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller.' " Id. at 222.

This doesn't mean, however, that the caller's information is correct. That is what can be challenged when your case makes it to court. Your lawyer should demand a copy of the "tip call" from the prosecutor and police records agency. Listen to what was said in the call to determine if there was enough information to make the stop. If your case is going to trial, demand that the State call that "independent" witness to testify. You have a constitutional right to confront that witness.

If the officer independently views traffic violations that would establish reasonable suspicion to stop your car, then the tip call may not matter.

There are so many facets of a New Jersey DWI case that require the utmost scrutiny by a qualified NJ DWI defense attorney. You should never assume that your case has no hope, or that you should just plead guilty. You must make sure that you hire a NJ DWI lawyer who will fight for you, rather than someone who will hold your hand and help you plead guilty. Your lawyer should investigate all aspects of your case to make sure that there is no stone unturned in your defense.

If you are charged with refusal to submit to breath testing in a New Jersey DWI / Refusal case, but you don't speak English well enough to understand the implied consent warning, you may have a defense to the refusal charge. Refusal convictions require proof that the officer requested that you submit to a chemical breath test and informed you of the consequences of refusing to do so. Even though motorists are deemed to have given their consent to submit to breath testing, the officer must still inform the driver of the consequences of refusal.

In a case decided by the New Jersey Supreme Court called State v. Marquez, the Court stated that the obligation to "inform" requires more than a recitation of English words to a non-English speaker. "Knowledge cannot be imparted in that way." The officer must convey the implied consent warning in a language the person speaks or understands.

The point of the officer advising a driver of the penalties for refusal "is to impel the driver to take the test so that the State will have the evidence necessary to prosecute a DWI charge." That aim cannot be accomplished, according to the court, by reading words in a language the motorist does not understand.

The Marquez court said that "reading the standard statement to motorists in a language they do not speak is akin to not reading the statement at all. The latter scenario renders a conviction defective."

In a published survey from 2008, Spanish translations, for example, accounted for 74,762, or about 85%, of the translated court sessions in New Jersey. The next most frequently translated languages in New Jersey courts were Portuguese (2,127 events), Polish (1,404), Korean (1,255), Haitian Creole (1,157), American Sign Language (1,118), Chinese/Mandarin (942), Russian (804), Arabic (706), and Vietnamese (425).

The implied consent law is written in Spanish in the driver's manual published by the Motor Vehicle Commission. The MVC also offers the driver license written exam in English, Arabic, Chinese, French, Spanish, Korean, Polish, Portuguese, Russian, and Japanese, and oral tests are conducted in English and Spanish. If the tests are not offered in your native language, the MVC allows you to use an interpreter.

In Marquez, the Supreme Court encouraged the MVC and the Attorney General to develop methods to translate and communicate the implied consent warning to motorists who do not speak English. As a result, certified translated versions of the standard statement have been prepared in both written and audio form in the nine foreign languages in which the MVC offers the written driver's test, namely, Arabic, Chinese (Mandarin), French, Japanese, Korean, Polish, Portuguese, Russian, and Spanish. The translated written and audio files are posted on the MVC website.

Defendants who claim that they do not speak or understand English have to demonstrate this to the court. Consult with a qualified NJ DWI defense attorney to evaluate all the defenses available to you in a New Jersey DWI / Refusal case.

In a New Jersey DWI case, there are many documents that the State must provide you so that you can defend your case. This is called "discovery". The discovery includes everything from the stop of your vehicle, through the roadside testing, to the breath or blood testing, and your release from police custody.

In order for the prosecutor to get Alcotest results admitted into evidence against you, the State must establish that: (1) the machine was in working order and had been inspected according to procedure; (2) the police officer who ran the testing on the machine was certified to do so; and, (3) the test was administered according to official procedure.

A significant challenge to the machine and admission of the Alcotest results is whether the machine was in "proper working order". There are three core foundational documents that the State must admit into evidence to establish this:

(1) the most recent Calibration Report prior to your test, including control tests, linearity tests, and the credentials of the state trooper coordinator who performed the calibration;
(2) the most recent New Standard Solution Report prior to your test; and,
(3) the Certificate of Analysis of the 0.10 Simulator Solution used in your control tests.

There are additional documents that you or your attorney will need in order to challenge the functionality or operability of the Alcotest in your case. These are referred to as twelve non-core foundational documents:

(1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator's credentials of the officer who performed that change;
(2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report;
(3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator;
(4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe;
(5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records (including both Parts I and II are offered));
(6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests);
(7) Certificate of Analysis 0.10 Percent Solution (used in Calibration-Control);
(8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity);
(9) Calibrating Unit, New Standard Solution Report, following Calibration;
(10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration-Linearity tests;
(11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and,
(12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability.

Once you have these documents, you can then determine whether additional material is needed, such as repair records for the machine, and most importantly the digital data logs from the Alcotest used in your testing.

This information is very complex and the defenses to the Alcotest are nuanced. It is important to have a qualified DWI defense attorney obtain all relevant discovery for you, and evaluate the possible defenses to your case. Often, in addition to your attorney reviewing the discovery, an expert on the machine data logs may be of assistance in providing additional defenses to the breath testing results.

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.

First, the machine is programmed with a 0.10% alcohol solution. This solution "tells" the machine what a 0.10% alcohol reading is, like programming a scale with a 10 pound weight. The scale is calibrated to read the 10 pound weight as 10 pounds. If the machine doesn't then read within a specified range at the 0.10% level, it is reprogrammed with a different solution. This is known as the Part I Control Test.

There is also linearity testing done on the machine with 0.04%, 0.08%, and 0.16% solutions. The machine is tested twice with each of these solutions, and must read within an acceptable range of each of the solutions. If it doesn't, the machine will be placed out of service. This is known as the Part II Linearity Test.

The third part of the calibration process involves the simulator solution that will now be used for subsequent testing with the machine. This is the Solution Change Report. This solution is good for 25 subject tests or 30 days, whichever comes first.

If any one of these processes is compromised, the testing in your case should be suppressed, or dismissed.

It is therefore critical to consult with a qualified DWI defense attorney who knows the specific processes of Alcotest machine. I represented the lead defendant in the case that decided the reliability of this machine, State v. Chun. The Chun case has set the standards for DWI defense and prosecution throughout the state of New Jersey.

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.

Fortunately, the New Jersey Supreme Court reversed the Appellate Division, and held that the legislative intent of the law precludes using the 2006 Refusal conviction to enhance the 2008 DWI conviction. The Court relied on a case called DiSomma from 1993, which determined that the Legislature intended the provisions of the DWI and Refusal statutes to be separate. Since the DiSomma decision, the Legislature has not revised the statutes on this issue, so the same reasoning applies: a prior refusal conviction cannot be used to enhance a subsequent DWI conviction.

The Ciancaglini Court noted that the DWI statute does not contain any reference to the refusal statute, and nothing suggests that the references to prior violations in the penalties listed in the DWI statute are meant to refer to anything other than DWI convictions. If the Legislature wanted to treat a refusal conviction as an enhancer for DWI, it would have to directly state that change of law.

Bills are already pending in the New Jersey Legislature to make this change. Therefore, it is important to consult with a qualified DWI Defense Attorney who knows DWI and Refusal law to fully assess your case and circumstances.

This is probably not what you would expect to see on a DWI attorney's blog. As a New Jersey DWI lawyer, I am in no way in favor of drunk driving: I am uncategorically against it.

I would imagine that anyone who views this video will be emotionally moved by the unthinkable consequences of drunk driving. The images in this video, a public service announcement from Australia, are graphic and very unsettling. While my job is to protect the rights of the accused, I also respect the victims of accidents, their families, and all who are affected by such tragedy.

While I am not "in favor of DWI", I am, however, in favor of protecting people's constitutional rights, and to make sure that the State proves the charges against the accused beyond a reasonable doubt.

A DWI arrest can happen to anyone, any age, any background: You are out for dinner with a friend and you have a glass of wine, or you had a beer at home and go to the store. On your way back, you encounter a roadblock or a checkpoint. The officer smells alcohol on your breath. You are unsteady during balance tests, for any number of reasons. The officer arrests you for DWI. You go back to the police station, and are confused because you are told you have to blow into a machine and you cannot talk to a lawyer. You decline to blow into the machine. You were not intoxicated, but you are given tickets for DWI and Refusal to Submit to Breath testing.

This scenario sounds simple enough, and happens frequently. Courts and legislators have stated that public policy demands that the roads be freed from drunk drivers. But, what happens to the drivers that are not drunk, but are caught in this net? Consult with the most qualified DWI lawyer that you can to see how your case can be defended.

This video was made as a warning at holiday time to not drive intoxicated. It's message, of course, should be heeded year round.