New Jersey DWI Defendant Challenges Alcotest Results, Citing Missing Device Maintenance Records

By Fabian Börner (Self-photographed) [GFDL (http://www.gnu.org/copyleft/fdl.html), CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0) or CC-BY-SA-3.0-de (http://creativecommons.org/licenses/by-sa/3.0/de/deed.en)], via Wikimedia CommonsThe New Jersey Superior Court, Appellate Division considered the appeal of a DWI defendant in State v. Lobo that challenged the admissibility of Alcotest results. The defendant argued in part that the state’s failure to provide him with complete repair and maintenance records for the device used to test his blood alcohol content (BAC) entitled him to relief on appeal. The state’s case relied on results from an Alcotest device, which has been sufficiently controversial that the state plans on retiring it. The court rejected each of the defendant’s points of error and affirmed the conviction.

The defendant was arrested on April 29, 2011 after a traffic stop. At a State Police barracks, officers administered a breath test using a Dräger Alcotest 7110 MK III-C device. The test showed a BAC of 0.13 percent, and the defendant was charged with DWI. The court ordered the state to produce repair records and other information regarding the Alcotest device. Prosecutors later informed the court that some repair records were not available, leading the court to modify its order to require production of “repair records that exist.”

Based on the information obtained about the device, the defendant moved to dismiss the case or exclude the Alcotest results on multiple grounds. The trial court denied the defendant’s motion. The defendant entered a conditional guilty plea, which allowed him to preserve the issues raised in his motion to dismiss for appeal.

On appeal, the defendant raised the following points: (1) whether the state withheld “material, relevant, exculpatory evidence” by failing to provide all repair records, and whether exclusion of the Alcotest results was required because of (2) the police’s failure “to adhere to the two-minute lockout between various ethanol measurements,” (3) the police’s failure to provide the defendant with a copy of the “alcohol influence report” (AIR), or (4) the police’s failure to use the equipment specified by the New Jersey Supreme Court to calibrate the Alcotest device.

The court ruled that the state had established the three elements required to admit Alcotest evidence, as defined by the New Jersey Supreme Court in 2008 in State v. Chun:  (1) the device was inspected prior to testing the defendant and was in working order at the time, (2) the operator was certified, and (3) the operator followed official procedure in administering the test. (I represented Ms. Chun, by the way…) It cited precedent cases holding that a DWI defendant can only compel the state to produce evidence that is directly relevant to the case. It denied the first point of appeal, holding that while the missing records and data might be material to the case, the defendant had failed to show that they were relevant or exculpatory. How a defendant is supposed to demonstrate this about missing evidence remains unclear.

On the second point of appeal, the court held that Chun only requires two minutes between breath samples, not between calibration and collection of a breath sample, as the defendant claimed. It also held that providing the defendant with an AIR at a certain time was not required by law. Finally, the court noted that a prior case, State v. Holland, rejected the defendant’s argument that Chun requires use of a specific brand of thermometer in Alcotest calibration.

If you have been arrested or charged with DWI, you need the help of a qualified and skilled DWI attorney to advise you of your rights and plan the best possible defense. At Levow & Associates, we have dedicated 100% of our law practice to DWI defense. To schedule a free and confidential consultation to discuss your case, please contact us online or at (877) 593-1717.

More Blog Posts:

Alcotest Breath Testing Machine to be Retired by the State of New Jersey, New Jersey DWI Attorney Blog, September 9, 2013

New Jersey DWI Alert: State v. Holland “decided” by the Law Division, New Jersey DWI Attorney Blog, August 29, 2011

New Jersey DWI Breath Testing Machine: Calibration of the Machine and Why It’s Important to Your Case, New Jersey DWI Attorney Blog, February 28, 2011

Photo credit: By Fabian Börner (Self-photographed) [GFDL, CC-BY-SA-3.0 or CC-BY-SA-3.0-de], via Wikimedia Commons.