New Jersey DWI Attorney Blog

State v. Chun is the biggest most important case in New Jersey DWI history, as it now sets the standards for DWI defense and prosecution throughout the state. It has also set standards across the country, since New Jersey was the first and only state, so far, to challenge the scientific reliability of the new breath testing machine in New Jersey, the Alcotest® 7110 MKIII-C.

I feel very fortunate to have been involved in State v. Chun since it began 2005, when New Jersey began to use the Alcotest® statewide. It has given me perspective and information that I would never have been able to learn from reading the case or the studies on the machine.

As part of the research to prepare for the case, I traveled to Alabama to see how that state managed it's Alcotest® program. I was able to gain significant perspective from others who were interested in a scientific assessment of the machine, rather than a rubber stamp pronouncement that the machine is "unbeatable". I worked with all of the experts who testified in State v. Chun, and was present first hand to learn about the machine, literally, inside and out. In fact, like all machines, it is fallible, and has issues that must be assessed in each particular case.

The Chun litigation lasted for over three years, when the New Jersey Supreme Court issued the opinion in State v. Chun. The court said that the machine was scientifically reliable, but that cases may be defended on operational and procedural issues pertaining to Alcotest® testing.

Ms. Chun's case actually concluded two years after that, more than five years from the date of her arrest. Ironically, based on information that I learned in the state-wide challenge to the Alcotest®, the breath test results from the Alcotest® in Ms. Chun's case were excluded from evidence. The officer who administered the breath test to Ms. Chun failed to change the mouthpiece after each breath sample. He changed the mouthpiece after the fifth breath sample, before the sixth sample. This was a clear violation of protocol, which the State Police and the manufacturer of the Alcotest® require that the mouthpiece be changed after each time the subject blows into the machine.

This information that was learned during the long process of the state-wide case before the New Jersey Supreme Court resulted in the underlying success to Ms. Chun, and to many clients that followed her. It is this type of information that I use in each particular Alcotest® case that my firm defends. We go through all of the paperwork and video in each case to determine what defenses there are in the specific circumstance, and assess what issues can lead to a suppression or exclusion of the breath test results from the particular case. The analysis required now with an Alcotest® case is much different and much more in-depth than the more straight-forward assessment that was done with the older Breathalyzer® machine.

Rather than restricting the defenses available in breath testing cases, the Chun litigation and the information available from it, have expanded the manner in which DWI breath testing cases are defended. It is extremely important, therefore, to have an experienced DWI attorney who is familiar with all of the available defenses to assess your specific case to see how your matter can be effectively defended.

Long before the New Jersey DWI case is over, clients wonder whether they should go to Alcoholics Anonymous or even into an alcohol or drug rehab facility, and whether that will help their DWI case.

Certainly, if you are having ongoing issues with alcohol or drugs and need help with the situation surrounding alcohol or drug use, you should absolutely seek assistance with the problem.

Whether it helps the DWI case is very different, and should not affect whether to seek help, if help is needed.

Generally, it is unlikely that going to AA or into rehab will change the outcome of a DWI prosecution, but it may help in sentencing issues with reference to discretionary jail terms. Demonstrating that you are seeking help for your problem and addressing the issues present cannot hurt in attempting to convince a prosecutor or a police officer to look more favorably on your circumstances.

For sentencing, on a first offense DWI conviction in New Jersey, jail can be imposed for up to 30 days. Imposition of jail is discretionary, not mandatory, on a first offense. Where it appears under the circumstances that jail may be imposed on a first offense, demonstrating to the judge that you have undergone rehabilitation treatment or have attended AA may be helpful in convincing the judge that jail is not warranted.

On a second offense DWI conviction, the sentence includes a minimum of 2 days in jail and a maximum of 90 days in jail. Again, where it appears that the circumstances will result in more than the two day jail term, showing that an effort is being made to address the alcohol and/or drug issues may convince the judge that additional jail above the 2 days should not be imposed.

For third offense DWI convictions, jail is mandatory for 180 days. The jail term can be reduced up to 90 days for alcohol-drug in-patient rehabilitation. Going to AA meetings would do nothing to reduce jail time in a third offense situation.

The bottom line is, if you have an ongoing problem with alcohol or drugs, seek help. If you have a DWI arrest, you must also seek a qualified DWI attorney to help you obtain the best results under the circumstances presented.

As a New Jersey DWI lawyer, clients often ask me whether they can get a work license or a hardship license after a DWI conviction. My first answer is that I don't want to have to get to that situation, and we will do everything we can to prevent that. Our goal is to do the best job that can be done under the circumstances of the case, and, first on that list is to seek to have the DWI dismissed.

It is important, however, to explore all options in the context of a DWI defense, and to understand the implications of all aspects of the prosecution and potential outcomes.

The unfortunate answer to this question is that there are no work licenses or hardship licenses in New Jersey after a DWI. Many states have this option, but definitely not New Jersey. So, during any suspension time imposed in New Jersey, the motorist cannot drive in the state of New Jersey until his/her driver's license privileges are restored in New Jersey.

Certain drug offenses in New Jersey provide for a waiver of the license suspension when hardship can be shown, but not for a DWI conviction.

It is also extremely unlikely that New Jersey will ever enact a law allowing work licenses or hardship licenses after a DWI conviction, because of the public policy concerns. I would be very surprised if a legislator would propose such legislation, since that would appear to be taking a position "soft" on DWI in New Jersey.

On the contrary, it makes absolute sense to have a provision for a work or hardship license in New Jersey. This very densely populated, heavily traveled state, does not have an adequate infrastructure for public transportation for people who need to get around without a driver's license, and who do not live and do most of their activity in an urban area.

Losing a driver's license as a result of a New Jersey DWI conviction has far reaching effects, not only on the convicted driver, but on his/her family and community. Allowing someone to drive to work, school, the grocery store, for religious services, as well as other essential activities would not lessen the burden of the overall conviction or restriction on licensing. There are additional safeguards in place for that restricted driver, such as installation of an ignition interlock device.

As a New Jersey DWI attorney, I am not in favor of DWI, but I am in favor of protecting my client's rights. While the law says that a driver's license is a privilege, not a right, I want to protect that privilege, as well. Society, on the whole, should want to do this, also. Restricting or even eliminating a first offender's ability to provide for his/her family and be a productive member of society should be revisited by the law makers. Allowing a work license or hardship license would not be "soft" on DWI, but favorable to everyone, as long as the convicted driver did not abuse the situation. That is yet another concern - that someone on a restricted license would commit another offense, or worse, injure someone in the process. Work licenses and hardship licenses are properly utilized and administrated in most other states. That should be the case in New Jersey, also.

But, because it isn't, it is extremely important to hire the best DWI lawyer possible in challenging the DWI charges.

As a DWI lawyer in New Jersey, I assure you there are many ways to challenge breath tests in DWI cases.

Just because the machine gives a reading at 0.08% or above, that does not mean that you will automatically be convicted of a DWI in New Jersey.

If someone asks you what the result of your breath testing was, asks you no more questions, and assumes that you will be found guilty simply because the machine says so, that person is wrong, wrong, wrong...

That's why I got involved in DWI defense, and why I became a "student" of DWI. I'm certainly not in favor of DWI, but I am in favor of protecting people's rights.

Years ago, I was one of those people that assumed a reading over the legal limit was not fightable. After one case in particular, I decided to really study how to challenge these cases, learn the breath testing equipment, and figure out how to defend these cases.

I attended seminars on theories of breath testing, I did advanced study regarding issues surrounding breath testing, and I bought the machines used by the State to test driver's arrested for DWI.

I learned that there are many physiological issues relevant to breath testing, and there are many technical defenses, as well. Every case is different, and a thorough assessment of each individual and the facts of the particular case is required in order to properly defend someone of DWI in New Jersey.

A medical history of the client should be obtained by the lawyer representing the accused motorist to determine what, if any, physical issues exist that could affect breath testing or the results of such testing.

Discovery, such as police reports, video, and full documentation on the breath testing machine must be obtained and fully reviewed to see what technical issues can be explored regarding the breath testing.

If the machine is not certified properly, if the officer operating the machine is not certified, if the protocols regarding the testing procedure are not followed -- these are a few of the areas that a qualified DWI attorney would explore in order to defend a DWI case.

Neither the client, defense lawyer, prosecutor, judge, or police officer must ever assume that all of these cases are alike, or that the issues in the cases are similar. DWI cases are extremely complex, and require diligent and aggressive representation to determine the best way to defend each particular case.

As a lawyer in New Jersey that practices only DWI defense, I am often amazed at the emphasis that judges place on field sobriety testing in court.

The reality is, according to the government's own statistics, the roadside exercises are at best 68% reliable in predicting someone to be over the legal limit to operate a car.

That is a direct policy statement from NHTSA - the National Highway Traffic Safety Administration. NHTSA also specifically says that the field "tests" are not supposed to be used as direct evidence of guilt on the DWI allegations. Field tests are to be used as assessors of probable cause to arrest: whether the officer has enough information to reasonably believe that the motorist is under the influence of alcohol.

The "tests" are also specifically defined only for alcohol. NHTSA has not validated these exercises for marijuana or any other drugs, yet the tests are often used to assist in forming an opinion of drug-based intoxication.

These exercises really shouldn't be called "tests". No one studies for these. They are balance exercises that are done road-side, under difficult conditions, such as traffic passing by, being close to the roadway, flashing lights distracting the subject, various kinds of weather, being performed at odd times of the day or night after the subject has been awake for varying periods of time, with the subject wearing different types of footwear, and the motorist potentially suffering from any number of physical issues that might affect balance.

The "tests" require that instructions be given exactly according to protocol, and that certain specific factors be used by the officer to score the exercise. If the instructions are not given exactly as required, or if the scoring is not done according to protocol, then NHTSA states that the reliability and validity of the testing is compromised. At that point, the information provided by the testing is no better than a flip of a coin to determine whether the person is under the influence of anything, other than a bad back, flat arches or some other physical issue.

If a person cannot do these exercises at 10 am on a Tuesday morning on a yoga mat, how can they be done at 1 a.m. after working or taking care of others for a full day, -- done on the side of a road, varying temperatures, gravel on the uneven surface of the roadway, with back pain?

When reviewing your case with an attorney, make sure that attorney has training in the field sobriety testing issues. If the New Jersey DWI attorney understands the field testing issues better than the officer, prosecutor and judge, you will have a better chance at defending that part of your case.