The New Jersey Supreme Court’s 2008 ruling in State v. Chun is one of the most important decisions affecting the rights of DWI defendants in this state. It caused major changes in how the state uses Alcotest machines to collect breath samples from DWI suspects. Chun also established mandatory procedures that safeguard DWI suspects against inaccurate test results, including a 20-minute waiting period prior to a breath test. In some situations, however, an individual could open themselves up to a charge of refusal to submit to a breath test, if an officer concludes that they are intentionally stalling.
Chun established that an officer must wait 20 minutes before collecting breath samples from a suspect, in order to ensure that no foreign substances are present in or around the suspect’s mouth that could affect the test results. During this time, the officer who will administer the test must observe the suspect to see if they place anything in their mouth, or if they swallow or regurgitate anything. If the officer notices anything entering or exiting the person’s mouth, notices that the person has gum or chewing tobacco in their mouth, or sees the person touch their mouth with their hand or any other object, the 20-minute observation period must start over.
This waiting period could come into conflict with New Jersey laws regarding implied consent to breath or blood testing. An individual who is instructed to provide a breath sample based on probable cause to suspect DWI may face a separate charge for refusal if they give anything short of total cooperation to the officer. Courts have sustained refusal convictions in cases where individuals failed to submit enough of a sample for the device to conduct an accurate test, and even cases in which a defendant agreed to submit a breath sample but tried to add a condition for doing so. This raises the question of whether a New Jersey DWI defendant could face a refusal charge for requiring multiple re-starts of the 20-minute Chun observation period.