Articles Posted in Breath Testing

Police officers in New Jersey use a device known as the Alcotest to determine a person’s blood alcohol content (BAC) in cases of suspected driving while intoxicated (DWI). The model currently in use throughout the state, the Alcotest 7110 MKIII-C, is subject to numerous restrictions established by the New Jersey Supreme Court in 2008. The New Jersey Attorney General recently announced plans to test a newer model, the Alcotest 9510, in some areas of the state. While the Alcotest 9510 has features that appear more “high-tech” than the 7110, its scientific reliability is far from established. The 7110’s reliability is still questionable in many cases, so switching to a new device is sure to be contentious.

What Is the Alcotest?

“Alcotest” is a brand name that belongs to Dräger, a company that manufactures a variety of devices used in healthcare, law enforcement, and other areas. Alcotest products include handheld devices, similar to a Breathalyzer, that provide fast BAC readings from breath samples, and larger breath-testing devices like the Alcotest 7110 that are not portable.

Police bring DWI suspects to the police station for testing by an officer who is certified to operate the Alcotest 7110. The 2008 New Jersey Supreme Court decision, State v. Chun, established procedures that police must follow in order to ensure the best chance for accurate results. For example, police must observe the suspect for twenty minutes before collecting a breath sample. During that time, the suspect must not place anything in their mouth that might interfere with the test. If anything enters the person’s mouth, even by burping, the twenty-minute clock must restart.
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In New Jersey, driving while intoxicated (DWI) is a serious offense that can result in significant penalties. A conviction for DWI results in a suspension of your driver’s license, as well as a fine and the possibility of jail time. The state has to follow a lengthy process before the case gets to the point at which you could face a conviction. This process can seem overwhelming to many people. An experienced DWI attorney can help you understand how the process works and what you may do to assert your rights. The following is an overview of what happens during a typical New Jersey DWI arrest.

Investigation at the Scene

A traffic stop is one of the most common ways in which a DWI case begins. A police officer might see a car driving erratically and suspect DWI. They might pull someone over for another traffic violation, such as running a red light, and suspect DWI based on factors like the driver’s behavior or the smell of alcohol.

The officer must have probable cause to suspect a driver of DWI before they may proceed further with an investigation. They may ask a driver questions about whether they have had anything to drink. They may also ask the driver to perform certain field sobriety tests (FSTs). A driver can refuse to perform the FSTs, but that most likely will not stop the officer from placing them under arrest.

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The Bill of Rights and New Jersey law protect various rights of drivers suspected of driving while intoxicated (DWI). Knowing your rights may help you make informed decisions about what to do — and what not to do — if the police pull you over. Violations of your legal or constitutional rights by police could give you defenses that you can raise in court. The following is an overview of your rights during a New Jersey DWI investigation.

The Right to Freedom from “Unreasonable Searches and Seizures”

The Fourth Amendment prohibits police from searching a person or their property, seizing property, or detaining a person without a warrant issued by a court. Many exceptions to this rule exist, but police must demonstrate that an exception applies.

Police Must Have Reasonable Suspicion to Stop Your Vehicle

When a police officer pulls your car over on the road, they must be able to show that they had a reasonable basis for suspecting a traffic violation or other offense, such as if they witnessed you running a stop sign or driving erratically.
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In order to prove guilt in driving while intoxicated (DWI) cases in New Jersey, law enforcement must show that a defendant was under the influence of either alcohol or certain types of drugs. State law allows them to use chemical tests that allegedly show the presence of alcohol or drugs. Chemical testing for alcohol has an extensive body of law addressing how police must collect and test samples of a DWI suspect’s breath. For other drugs, they must use samples of blood or urine. This type of testing can be much less certain, both scientifically and legally. Urine testing, in particular, has significant reliability issues. If the state tries to introduce results from urine tests, DWI attorneys must carefully examine the evidence to look for errors.

New Jersey has used chemical testing in DWI and DUID cases for decades. In 1964, the New Jersey Supreme Court held that “[a]lcoholic content in the blood furnishes a scientific measure of the extent of the influence of liquor upon the person.” It went on to state that “chemical analysis of the blood itself, urine, breath and other bodily substances is a scientifically accurate method of ascertaining that content.”

State law currently defines the offense of DWI in two ways: “operat[ing] a motor vehicle” either (1) while impaired by an “intoxicating liquor, narcotic, hallucinogenic or habit-producing drug;” or (2) “with a blood alcohol concentration [BAC] of 0.08% or more by weight of alcohol in the defendant’s blood.” BAC above the “legal limit” of 0.08% creates a presumption that the defendant is legally impaired by alcohol. The state’s implied consent statute makes breath testing mandatory in DWI investigations.
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New Jersey’s laws dealing with the offense of driving while intoxicated (DWI) say a great deal about impairment by alcohol, but far less about impairment by other substances. The statute makes it a motor vehicle offense to drive “while under the influence” of alcohol, with blood alcohol concentration (BAC) of 0.08 percent, or while under the influence of a “narcotic, hallucinogenic or habit-producing drug.” This last category is ill-defined, especially when compared to the vast body of law dealing with alcohol. New Jersey courts may accept testimony regarding impairment by drugs even in the absence of evidence of any specific drug in a sufficient amount to cause impairment. Understanding how New Jersey law deals with “drugged driving” is critical to mounting a defense.

State law identifies two types of DWI involving alcohol. Operating a vehicle while “under the influence of alcohol” constitutes DWI, but requires the state to prove the existence of alcohol’s “influence” over a defendant. If a defendant had BAC of 0.08 percent or more, state law presumes that they were under the influence. This is known as DWI per se. Courts have developed an extensive set of rules surrounding DWI allegedly caused by alcohol, especially when breath testing is involved.

We were part of a landmark 2008 decision by the New Jersey Supreme Court, State v. Chun, which established procedures and requirements for the admissibility of BAC evidence obtained from breath testing. It addressed the breath-testing device used by law enforcement around the state, known as the Alcotest. The state supreme court has reiterated the importance of the procedures set forth in Chun. In a 2015 decision, for example, it stated that any finding of guilt in a DWI per se case “is subject to proof of the Alcotest’s reliability.”
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New Jersey prosecutors can prove guilt in driving while intoxicated (DWI) cases by presenting evidence showing beyond a reasonable doubt that a person was impaired by alcohol or drugs while operating a vehicle. They can also prove guilt, at least with regard to impairment by alcohol, by showing that a person’s blood alcohol content (BAC) was at least 0.08 percent. Police can measure BAC using samples of a person’s breath or blood. For drugs other than alcohol, they must test blood or urine. Drug testing is far from a settled science, and false positives still occur quite often. DWI defense in New Jersey requires careful examination of evidence that supposedly shows positive drug test results or BAC above the “legal limit” of 0.08 percent.

State law requires drivers to submit breath samples for BAC testing. Anyone driving on New Jersey’s public roads is considered to have consented to breath testing. Refusal to submit breath samples is a motor vehicle offense that could be charged along with DWI. Blood and urine samples still require either a search warrant or a driver’s consent.

Police in New Jersey use a device known as the Alcotest to test breath samples for BAC. Unlike blood or urine samples, breath samples cannot be stored for later testing. The Alcotest is therefore designed to perform tests at police stations, not laboratories. A person blows into a tube, and the device subjects the breath sample to chemical reactions. The device requires frequent maintenance and careful calibration.
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Drivers in New Jersey are obligated by state law to provide breath samples to police when they suspect driving while intoxicated (DWI). Police throughout the state use a device known as the Alcotest to determine a driver’s blood alcohol content (BAC). We were involved in a case before the New Jersey Supreme Court in 2008, State v. Chun, which resulted in detailed rules for the use and maintenance of Alcotest devices. This includes a requirement of two separate breath tests. The New Jersey Appellate Division considered an appeal last fall from a DWI defendant who argued that the police did not follow the requirements set out in Chun. The court’s ruling addresses how precise police must be with regard to waiting between breath tests.

Prosecutors can prove, for the purposes of the DWI statute, that a defendant was under the influence of alcohol by presenting evidence of BAC at or above 0.08 percent. State law requires drivers to submit to breath testing, viewing the act of driving on New Jersey roads as giving implied consent. Refusal to provide breath samples upon request by police is a separate motor vehicle offense, punishable by a fine and driver’s license suspension.

The New Jersey Supreme Court’s ruling in Chun addressed numerous concerns about the Alcotest device’s accuracy and reliability. The court found that police must collect at least two samples, by which the driver exhales into a tube connected to the device. A special master appointed by the court noted the potential for contamination during the time between a driver submits their first breath sample and their second. To account for this, the device’s software locks everything down for two minutes to give the machine time to clear out the first breath sample.

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New Jersey’s driving while intoxicated (DWI) statute gives prosecutors two methods of establishing that a defendant was too impaired to operate a vehicle legally. They can introduce evidence indicating that the defendant’s behavior and appearance at or near the time they were driving were consistent with intoxication due to alcohol or drugs. Prosecutors may also prove intoxication by showing that a defendant’s blood alcohol content (BAC) was above a certain level. What is BAC, though? Simply put, it is a measurement of how much alcohol is present in a person’s body. How police measure BAC is often a matter of controversy, so a New Jersey DWI attorney’s knowledge of how state law uses BAC is important to understanding how to defend against DWI charges.

BAC in New Jersey DWI Law

The DWI statute defines the offense as either:
1. Driving “while under the influence of” drugs or alcohol; or
2. Driving with BAC of at least 0.08 percent.
With evidence that a defendant had BAC of 0.08 percent or more, the state does not necessarily have to provide evidence of extrinsic details like bloodshot eyes or the odor of alcohol. New Jersey law presumes that a person was intoxicated, and therefore unable to drive, when their BAC was above the “legal limit.” This is often known as per se DWI.

State law requires every driver to submit to breath testing to determine BAC, and makes refusal a separate motor vehicle offense. A defendant can challenge the admissibility of the state’s BAC evidence based on a 2008 decision by the New Jersey Supreme Court, which established procedures that police must follow to calibrate and maintain the Alcotest devices used to perform breath tests.

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New Jersey prosecutors can use evidence of blood alcohol content (BAC) to prove that a person committed the offense of driving while intoxicated (DWI). Under state law, driving a vehicle on a public road implies consent to breath testing to determine BAC. Refusal to submit to breath testing is a separate motor vehicle offense. Law enforcement began using a device known as the Alcotest in 2005, and it is now the standard device throughout the state for BAC testing. Police must follow specific procedures regarding maintenance and calibration of these devices, as set forth in a 2008 ruling by the New Jersey Supreme Court. A decision by the court in late 2018 called over 20,000 New Jersey DWI cases into question based on falsified maintenance records. In June 2019, the Appellate Division cited that decision when it voided the conviction in one of the affected cases. If you have been stopped in New Jersey and asked to submit to breath testing, it is important that you contact a New Jersey DWI attorney as soon as possible to protect your rights under the law.

Under New Jersey law, BAC of 0.08 percent or higher creates a presumption that a person was under the influence of alcohol. This is known as per se DWI. Prosecutors can also establish that a person was impaired by alcohol through the “observational method.” This typically involves police officers’ testimony about their observations of a defendant’s appearance, behavior, and performance on field sobriety tests.

The New Jersey Supreme Court’s 2008 ruling established procedures for calibrating the Alcotest device, which requires careful maintenance to ensure accurate results. Police must calibrate the devices on a regular basis, and must follow standards set by the National Institute of Standards and Technology (NIST) when doing so. They must keep records of these calibrations, and must introduce those records as evidence along with BAC test results in DWI cases.

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Much of New Jersey is currently shut down because of the global COVID-19 pandemic, which has hit this state particularly hard. In some ways, this has slowed enforcement of driving while intoxicated (DWI) laws, but in other ways, New Jersey police are even more on alert. Municipal courts across the state remain closed under an order from the New Jersey Supreme Court, so any pending or new cases must wait for court dates. The governor’s emergency orders, on the other hand, require people to limit their movement and interactions with others, in the hopes of slowing the spread of the virus. Police are on the lookout for violators. Recent news coverage of arrests during the coronavirus lockdown has also shown how DWI enforcement can involve both criminal and motor vehicle laws.

DWI During a Lockdown

The New Jersey DWI statute defines the offense as operating a motor vehicle while under the influence of alcohol or drugs, or while one has blood alcohol content (BAC) of 0.08 percent or higher. Police can pull drivers over if they have reasonable suspicion that they have committed a traffic offense, such as running a stop sign, failing to use a turn signal, or driving erratically. If additional evidence leads them to suspect DWI, such as the odor of alcohol or the driver’s appearance or behavior, they may conduct a further investigation. This could include field sobriety tests or breath testing to determine BAC.

The executive orders issued by the governor in response to the coronavirus pandemic have given police in New Jersey additional justifications for pulling over drivers. It is too early to know if this will lead to more DWI arrests, but it is a possibility. On March 21, 2020, the governor issued Executive Order 107, which instructs “all New Jersey residents [to] remain home or at their place of residence” unless they are performing essential tasks like going to work, seeking medical attention, or going to the grocery store. State law allows law enforcement to penalize violations of this order as a disorderly persons offense.

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