Defendant in DWI Case Has Burden of Proving Inability to Provide Breath Sample, According to New Jersey Court

asthma inhalerNew Jersey’s driving while intoxicated (DWI) law places a great deal of emphasis on a defendant’s blood alcohol concentration (BAC). Police can determine a DWI suspect’s BAC by testing a sample of breath, blood, or urine. Breath testing is the most common method, and New Jersey’s implied consent law makes it a traffic offense to refuse a police officer’s demand for a breath sample. Not everyone is physically capable of providing a sufficient sample, however. The New Jersey Superior Court, Appellate Division recently ruled, in State v. Monaco, that a defendant has the burden of proving that a physical condition prevented them from completing a breath test.

Refusing to submit to breath testing is a traffic offense under New Jersey law, with penalties comparable to a first-time DWI. These can include fines, license suspension, and the use of an ignition interlock device. New Jersey police generally use a breath-testing device known as the Alcotest. Court decisions have established procedures that police must follow prior to and during breath testing, including a 20-minute waiting period during which the DWI suspect cannot touch or place anything in their mouth.

The Alcotest device requires at least 1.5 liters of air, which typically requires a person to exhale forcefully for at least four and a half seconds. Not everyone is capable of providing this much air through sustained exhalation. This was a key issue in the defendant’s appeal in the Monaco case.

After her arrest, the defendant in Monaco was taken to a police station for breath testing. The 20-minute waiting period began after an officer allowed her to use her asthma inhaler. When instructed to blow into the tube attached to the device, the defendant reportedly failed to provide a sufficient breath sample in three attempts. The court states that, instead of the required 1.5 liters over 4.5 seconds, the defendant’s attempts amounted to 0.7 liters over 5.2 seconds, 1.0 liters over 5.9 seconds, and 0.5 liters over 4.1 seconds.

The officer administering the test accused the defendant of “not making a genuine effort to blow into the mouthpiece.” The court noted that it did not “condone the officer’s harsh language” at this point, which reportedly included telling the defendant that “she disgusted him.” The defendant was charged with DWI and refusal.

The defendant’s physician, who had treated her for about 25 years, testified with regard to her asthma. He testified that she could only exhale “56 percent of what was predicted for a woman of her age, weight, and body mass index,” but he also stated that this improved with the use of her inhaler. The municipal court and Law Division convicted the defendant on both counts.

The Appellate Division affirmed the lower court rulings, finding that New Jersey requires a defendant to produce evidence about an inability to perform a breath test, since they are “the party with the greatest access to information on the issue.” The court cited decisions that placed this burden on defendants who claimed that they could not perform a breath test because of a language barrier, or because they were too “confused” to agree to breath testing. It found the doctor’s testimony unconvincing because of the improvement she reportedly showed with medication.

A DWI attorney with experience in the New Jersey court system can help you understand your rights if you are facing an alleged DWI charge in this state. Evan Levow has dedicated 100% of his law practice to representing New Jersey DWI defendants. Contact us today online or at (877) 593-1717 to schedule a free and confidential consultation with a member of our team.

More Blog Posts:

U.S. Supreme Court to Rule on Constitutionality of Criminal Refusal Statutes, New Jersey DWI Attorney Blog, May 25, 2016

Alcotest Documentation Was Sufficient in DWI Case, New Jersey Appellate Court Rules, New Jersey DWI Attorney Blog, April 4, 2016

Defendant Challenges Legal Sufficiency of “Standard Statement” Read During New Jersey DWI Arrests, New Jersey DWI Attorney Blog, March 5, 2016

Photo credit: InspiredImages [Public domain], via Pixabay.