New Jersey DWI Attorney Blog

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.

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.

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.