Defining Defense and Prosecution of DWI in New Jersey: State v. Chun

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.

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