New Jersey DWI Attorney Blog

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.

This case can easily be mis-interpreted. It doesn't mean that you cannot challenge readings where the calibration on the machine is more than 6 months old. That would be inconsistent with the ruling in Chun. The timing in McConnell is important. His arrest occurred two months after the ruling in Chun, and the State had not gotten around to recalibrating the 600+ Alcotests® in New Jersey. McConnell claimed that because his calibration was 2 months beyond that period, his readings were inadmissible.

After McConnell, more may be required to mount a successful challenge on the recalibration issue than just pointing out that the recalibration period is greater than six months, but it doesn't foreclose the defense. Even before Chun, courts have held that failure to follow protocol and procedure makes breath testing results unreliable and inadmissible.

Two and a half years after Chun, the State has still not complied with the Court's ruling that the software in the machine be modified.

Each case is different and each case must be evaluated on its own to determine what defenses are available to assert. McConnell highlights the fact that DWI practice is more complicated than ever, and that qualified DWI representation is more important than ever.

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.

So, what are some of the available defenses to Refusal when you did attempt to blow?

Did the officer read you the second set of warnings on the "Implied Consent Warning" that he/she was supposed to read you prior to administering the breath test. When the officer read you the statement, you consented to giving samples of your breath. You said you would take the test. You did take the test, but, for some reason were not able to give an adequate sample. The officer may have verbally told you that he/she would charge you with refusal if you didn't give a complete sample, but, unless he/she read you the final paragraph on the Implied Consent Warning, then you have a defense to the charge. See State v. Schmidt.

You may have a physiological defense to your attempts to blow into the Alcotest. It is not an easy blow -- it takes more effort to blow into this machine than its predecessor, the Breathalyzer®. If you have any pulmonary or lung issues, or if you are sick, or are a smoker, you may be able to demonstrate that you couldn't physically provide the required sample.

There are many more defenses to Refusal to Submit to Breath Testing in a New Jersey DWI/DUI case. You should consult with qualified DWI/DUI counsel who can go through all of the facts of your case and determine your best defenses.

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.

This machine, the Alcotest®, requires more knowledge and ingenuity to defend against, compared to its predecessor, the Breathalyzer® 900 and 900A. There are many more technicalities associated with the Alcotest® than the Breathalyzer®. For instance, the documentation attached to the testing process is at least three to four times greater than the paper work from the older testing.

Most significantly, the Alcotest® allows for information to be produced from its database to establish whether the machine is operating as it should be, or as it is expected to operate. State v. Chun was a three year long scientific reliability challenge to the Alcotest®. From Chun, we now have many areas to challenge -- not the reliability of the machine, but -- whether the machine is operating properly. The electronic information that can be mined from the machine's database is invaluable in assessing the operability of the the Alcotest® as it relates to the particular machine used in the motorist's testing.

Many attorneys were very nervous after Chun came out, believing that the results from the Alcotest® are indefensible. Nothing could be further from the truth. Of course, each case must be assessed on its own facts and circumstances, but the Alcotest® results can and must be challenged in every case where the defendant wants to do so. Even where the Alcotest® reports a breath test reading over 0.08%, if there are errors that can be established in the machine's process or in the overall testing protocol, the breath testing results should be suppressed or excluded from evidence.

It is therefore critical to have qualified a New Jersey DWI lawyer assess the defenses available relative to the Alcotest® issues, as well as the physical case that is alleged against the driver. A New Jersey DWI can be successfully defended and dismissed under the appropriate circumstances.

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.

That is why it is important to determine all defenses to the charges against you. For example, in a first offense New Jersey DWI case, if the breath test reading can be suppressed or excluded from evidence, then you will not be ordered to install an ignition interlock device. In a first offense refusal case, if the refusal can be dismissed, then the ignition interlock device will not be an issue that you will have to deal with.

The law also requires that a convicted offender must install the ignition interlock device during the period of suspension. This means that on a first offense, you must install the interlock during your 7 - 12 month suspension, and you must have the device installed for 6 -12 months once you get your license back.

Very few drivers have been installing the interlock during their suspension period, because there has been no way to track compliance. However, the convicted driver must install an interlock and show proof of installation in order to get his/her license from the Motor Vehicle Commission.

Ignition Interlocks must be installed as follows:

• First Offense DWI - 0.15% or higher - during the 7 - 12 month suspension period, and for 6 - 12 months upon license restoration. The range of 6 -12 months is determined by the judge at the time of sentencing.
• First Offense Refusal - same as above - during the suspension period, and for 6 - 12 months after the license restoration.
• Second Offense DWI/DUI and second offense Refusal - during the 2 year suspension period, and for 1 - 3 years upon license restoration. The 1 - 3 year period is determined by the judge at the time of sentencing.
• Third or greater DWI/DUI and Refusal charges - during the 10 year suspension period, and for 1 - 3 years upon license restoration. The 1 - 3 year period is determined by the judge at the time of sentencing.

To avoid installation of an ignition interlock device you must successfully challenge the DWI/DUI and/or Refusal charges against you.

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
• Seeking an order from the old court stating that the conviction cannot be used to put my client in jail in the current matter, based on errors that I alleged from the original proceedings. The conviction still stands, and it won't reduce the license suspension, but it cannot be used to put my client in jail in the pending matter.

However, Enright essentially says that to obtain relief from jail, the client had to be unrepresented by counsel at the time of the original plea. Otherwise, if the client was represented, then the first option must be sought -- attempting to reopen the case altogether and trying to win the older case outright. While this is harder to do, it can be done in the right circumstances.

I routinely review any prior convictions for my clients. I always advise clients whether there are any options for Post Conviction Relief.

If you have prior convictions, and you are facing a current DWI charge, make sure that the lawyer you are talking to discusses PCR issues with you. If the subject of PCR doesn't come up in your initial conversation with a New Jersey DWI attorney you are interviewing, you may want to seek another opinion on how your case can be handled.