Articles Posted in Alcotest

New 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.

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In any court proceeding in which the state seeks to impose penalties on a person for an alleged violation of the law, the defendant has the right to obtain evidence used by the state in the case. The process of obtaining evidence from opposing parties is known as “discovery” in both civil and criminal proceedings. Under New Jersey law, driving while intoxicated (DWI) is considered a traffic offense rather than a criminal offense, but defendants are still entitled to discovery before a case goes to trial. New Jersey courts have held, however, that a defendant’s right to discovery in a DWI case is narrower than in a criminal case. The court reviewed these rights, and the state’s obligations, in February 2016 in State v. Conroy, when it ruled on a defendant’s challenge to the state’s evidence.

New Jersey law enforcement uses a device known as the Alcotest to measure blood alcohol concentration (BAC) in breath samples obtained from DWI suspects. State law requires any law enforcement officer operating an Alcotest device to be certified in accordance with standards established by the New Jersey Attorney General. These standards, which are codified in Title 13, Chapter 51 of the New Jersey Administrative Code (NJAC), require a Breath Test Operator (BTO) to have an “operator’s certificate” that is valid at the time they administer a test to a suspect. The NJAC states that a “replica certificate” with the “facsimile signature of the Superintendent [of the State Police] and the Attorney General” is valid to establish a BTO’s credentials.

The New Jersey Supreme Court’s 2008 decision in State v. Chun established that the state must produce certain documents in any case that relies on breath testing evidence obtained with an Alcotest device. Subsequent decisions from the Appellate Division have identified types of evidence that do not fall under the requirements of Chun. Two decisions, State v. Maricic from 2010 and State v. Carrero from 2012, held that discovery in DWI cases is more limited than in criminal proceedings.

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When prosecutors in New Jersey pursue a case of alleged driving while intoxicated (DWI), they frequently rely on evidence of a defendant’s blood alcohol content (BAC) obtained through breath or blood testing. Anyone with a BAC of 0.08 percent or above is presumed to be impaired for the purpose of a DWI case. Police in this state typically use a device known as an Alcotest to collect and test breath samples from DWI suspects. We were counsel in a case that went before the New Jersey Supreme Court in 2008, State v. Chun, which established multiple guidelines that the state must follow in order to use BAC evidence obtained with an Alcotest device. The state Supreme Court recently reversed a DWI conviction in another case, State v. Kuropchak, based on improper documentation regarding the Alcotest used by police.

Police in New Jersey currently use the Draeger Alcotest® 7110 MKIII-C. The DWI suspect blows into a tube, and the device analyzes the breath sample to estimate the person’s BAC. It bases its estimate on a “2,100 to 1 blood/breath alcohol ratio,” meaning that its programming assumes that 2,100 parts of breath contain the same amount of alcohol as one part of blood. This assumption was one of the many features of the Alcotest that were challenged in Chun.

The New Jersey Supreme Court ruled in Chun that the Alcotest is generally acceptable by scientific standards, but it imposed a variety of conditions on police using the device, and on prosecutors seeking to admit BAC evidence obtained with the device. The state must produce two documents relating to the calibration and maintenance of the device. It must produce a Certificate of Analysis showing that the device has the proper “simulator solution,” a solution typically designed to return a 0.10 percent result to use as a comparison to the breath sample. The state must also produce the most recent report documenting maintenance of the device, known as the “Calibrating Unit New Standard Solution Report.”

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Law enforcement agencies in New Jersey use a device known as the Alcotest to determine the blood alcohol content (BAC) of individuals suspected of driving while intoxicated (DWI). A 2008 decision by the New Jersey Supreme Court in which we represented several parties, State v. Chun, determined that the Alcotest is scientifically reliable, provided that the state meets certain conditions. The decision also established procedures that law enforcement must follow when using the device. The New Jersey Appellate Division heard a case last year, State v. Sorenson, that asked it to decide whether a failure by police to follow certain parts of Chun required suppression of evidence obtained with an Alcotest device.

BAC evidence is not required in a DWI case. A court can convict a defendant of DWI based solely on the testimony of officers who observed the defendant’s appearance and behavior. This is known as an “observational violation.” The New Jersey DWI statute also provides, however, that any person with a BAC of 0.08 percent or higher is presumed to be under the influence of alcohol. A DWI case based on BAC results is known as a “per se violation,” since it rests on the presumption of impairment. For a first DWI offense, the penalties are the same for a per se violation when the defendant’s BAC is 0.08 percent or higher, but lower than 0.10 percent, as they are for an observational offense. The penalties are greater, however, for a per se violation with a BAC of 0.10 percent or higher.

After an individual submits a breath sample to an Alcotest machine, the device runs various tests and prints out a Alcohol Influence Report (AIR), stating the BAC detected in the sample. The AIR frequently serves as the state’s evidence of impairment. Under Chun, police are required to provide a copy of the AIR to a defendant or a defendant’s counsel.

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The Fifth Amendment to the U.S. Constitution states that a person may not, “for the same offense…be twice put in jeopardy of life or limb.” This is known as the “double jeopardy” clause of the Constitution. Courts have interpreted it to mean—in a very general sense—that the government cannot charge a person with a criminal offense if they have been acquitted or convicted of an offense based on the same act or incident. The New Jersey Appellate Division, in State v. Sorenson, recently considered a DWI defendant’s claim that double jeopardy barred the prosecution’s appeal. A common misconception about double jeopardy is that it prevents the state from appealing any ruling in a criminal case, since it often does not apply to non-final judgments in trial courts.

The double jeopardy clause states that prosecutors cannot charge someone for the same offense more than once. Each phrase in the clause, particularly the phrase “twice put in jeopardy,” has been subject to extensive judicial scrutiny. Double jeopardy unquestionably applies once a person has been acquitted or convicted of a particular offense. For example, if a person is charged with DWI and acquitted (or convicted) by a municipal court, the state cannot charge that person with DWI again for the same incident. Prosecutors also could not appeal the acquittal itself.

When a case does not result in a final judgment of conviction or acquittal, however, double jeopardy becomes much more complicated. If a court dismisses a case based on a defendant’s pre-trial motion, the prosecution might be able to appeal that order. If an appellate court rules in the state’s favor, the case would proceed as though the dismissal had not occurred.

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A federal court of appeals recently ruled that part of a lawsuit filed by two former Houston Police Department (HPD) crime lab employees may continue in trial court. The plaintiffs in Culbertson v. Lykos allege that they faced retaliation by multiple officials after they exposed problems with the HPD’s Breath Alcohol Testing (BAT) vans, vehicles used as mobile sites for breath testing of DWI suspects. The allegations led to an investigation of HPD and the Harris County District Attorney (DA), and a review of multiple DWI cases. Breath testing devices require careful calibration and regular maintenance, and the misuse of a device ought to bring an end to a DWI prosecution. The matter is somewhat reminiscent of our efforts to establish guidelines for the use of Alcotest devices by New Jersey law enforcement, which resulted in the New Jersey Supreme Court’s ruling in State v. Chun.

Houston, Texas first approved funds for six BAT vans in late 2007 for use “as mobile Intoxilyzer units for the processing of DWI suspects.” The vans reportedly entered into service in 2010. DWI defense advocates shortly began raising concerns about the accuracy and reliability of mobile breath-testing devices.

The plaintiffs in Culberson worked as a criminal specialist and a criminalist in HPD’s crime lab. They both resigned in 2011, partly due to “dissatisfaction with the BAT vans.” One plaintiff, the criminal specialist, was subpoenaed by the DA to testify at a DWI trial in May 2011. She reportedly testified that she inspected the BAT vans and found them to be in working order, but she would not testify that they were working properly at the time the defendant was tested. The jury returned an acquittal.

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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.

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A defendant in a DWI case, State v. Arbuckle, appealed his conviction after a trial de novo in the Superior Court, Law Division. He argued in part that the court erred in admitting Alcotest results into evidence. The Appellate Division noted that the lower court had applied factors established by the New Jersey Supreme Court in State v. Chun when it reviewed the arresting officer’s conduct in administering the Alcotest. Chun was a landmark 2008 decision regarding the use of Alcotest machines by New Jersey law enforcement. We represented one of the defendants in that case and participated in the argument.

In the present case, the defendant was arrested shortly after 2:00 a.m. on January 26, 2013. The arresting officer reportedly responded to “an anonymous call that a snow plow was recklessly kicking up dirt and rocks” in the parking lot of a club in Manville, New Jersey. The officer observed the defendant in a vehicle “with its plow down despite the lack of snow on the roads.” He claimed to have smelled alcohol on the defendant’s breath and stated that the defendant admitted to drinking. The officer testified that he terminated the field sobriety tests because the defendant could not keep his balance. He placed the defendant under arrest and took him to the station for breath testing.

Under Chun, an officer administering an Alcotest must wait 20 minutes before collecting a breath sample because of the risk of a false reading caused by residual alcohol in a person’s mouth. They must observe the person for the entire 20-minute period to make sure that no additional alcohol gets into the person’s mouth. The 20-minute period must start over if the person vomits or otherwise regurgitates, if they swallow anything, or if the operator notices any foreign object in the person’s mouth, such as gum or chewing tobacco. According to a 2012 Appellate Division ruling, State v. Carrero, the operator does not have to maintain eye contact with the person for the entire 20 minutes. They are only required to maintain as much visual contact as is needed to determine if they have “ingested or regurgitated something that would confound the Alcotest results.”

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Are breath or blood test results required to prove that a driver was legally intoxicated? While test results showing blood alcohol content (BAC) above 0.08 percent might be the most well-known means of proving intoxication, it is not the only means. A defendant recently asked a New Jersey appellate court to reverse his DWI conviction, arguing that the state lacked sufficient evidence to prove DWI without BAC evidence. The trial court had based its decision on testimony from the arresting officers. The appellate court reviewed New Jersey law regarding how the state may prove impairment in a DWI case, and it affirmed the convictions in State v. Robinson in February 2015.

According to the court’s opinion, the arresting officers observed the defendant’s pickup truck at about 2:00 a.m., traveling on I-287 at between 80 and 85 miles per hour and changing lanes without signaling. The defendant, after pulling over, reportedly told the officers that he had just worked a 14-hour shift, was very tired, and simply wanted to go home. The officers stated that they did not detect any odor of alcohol, although they claimed that defendant’s speech “was a little slurred.” They accepted his explanation, cited him for careless driving, and warned him against speeding.

At that point, according to the officers, the defendant “bolted” in his truck, quickly accelerating back to around 85 miles per hour. The officers testified that they had to drive close to 100 miles per hour to overtake him. The other officer spoke to the defendant when he pulled over. He also did not notice any alcohol smell, but he claimed that the defendant had difficulty getting his driver’s license out of his wallet. This officer had the defendant perform several field sobriety tests, including the walk and turn test and the one-legged stand test. He claimed the defendant did poorly on both. At this point, the officers arrested the defendant for DWI.

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For more than eight years, our law firm has been principally involved in challenges to the Alcotest device, which the state uses to measure blood alcohol content (BAC) in DWI cases. We represented the lead defendant in a 2008 case, State v. Chun, in which the New Jersey Supreme Court established strict guidelines for the admissibility of Alcotest results and required multiple changes to the device’s software. Unfortunately, New Jersey courts have since rolled back those protections, starting with a 2011 ruling in State v. Holland. We went back to court in the Chun case in 2013 to challenge the state’s failure to do what the Court ordered in 2008. While the court ruled that the state may continue using the Alcotest device, the state will have to find an alternative soon. The German company Draeger, which manufactures the Alcotest, will no longer offer a warranty for the device after 2016.

The state continues to use the Alcotest 7110 MKIII-C device, with the New Jersey State Police offering operator certification and re-certification training for state, county, and local law enforcement. A person whose BAC is 0.08 percent or higher is presumed to be intoxicated under state law. BAC evidence is not necessarily required to prove DWI in court, but without it, prosecutors must rely on physical observations of alleged intoxication. While witness testimony is subject to cross-examination and challenge on a wide range of issues, a defendant typically may only challenge BAC evidence based on the device’s maintenance, calibration, and proper functioning. The Alcotest device has raised many questions in these areas.

In Chun, we challenged the scientific reliability of the Alcotest device, which uses two methods to measure alcohol concentration in a breath sample. The court’s decision describes how the device captures the breath sample in a chamber, where it uses infrared energy to calculate the alcohol content based on energy absorption. The second method takes part of the breath sample from the infrared chamber and applies voltage to oxidize the alcohol. This creates electricity, which the device measures to determine the alcohol amount. The device requires careful calibration, with a period of at least 20 minutes between calibration and use. Continue reading