Prosecutors in New Jersey must prove every element of the offense of driving while intoxicated (DWI) beyond a reasonable doubt. In cases that rely on breath testing to establish blood alcohol content (BAC), this includes evidence that the equipment used by police met the requirements of state law. Our firm was involved in a landmark 2008 ruling by the New Jersey Supreme Court, State v. Chun, which established procedures for maintaining and calibrating the breath-testing device used by most New Jersey police departments. The court’s decision also identified a set of “foundational documents” that prosecutors must produce to establish that police have followed these procedures. In September 2018, the New Jersey Appellate Division ruled in State v. Ogden on a challenge to the foundational documents offered by the state in a DWI case.
Under the New Jersey DWI statute, BAC of 0.08 percent or above creates a presumption of impairment. State law therefore requires drivers suspected of DWI to submit a breath sample for testing by police. Most police departments around the state use a device commonly known as the Alcotest to test breath samples. These devices have been controversial because of concerns over the training of the officers administering the tests, and the accuracy of the test results. The New Jersey Supreme Court ruled in Chun that Alcotest results are admissible in court, provided that the state meets strict requirements for the maintenance of the devices and the conditions in which breath tests may be performed.
In addition to offering evidence that police followed the testing procedures established by Chun, such as a twenty-minute waiting period before a DWI suspect may submit a breath sample, police must establish that the Alcotest device had been properly calibrated and was in good working order when the defendant was tested. The court identified three “foundational documents” in Chun that prosecutors must produce:
1. The most recent calibration report for the device from before the date of the defendant’s test, which must include information on the credentials of the individual who did the calibration;
2. The most recent “new standard solution report”; and
3. The “certificate of analysis of the 0.10 simulator solution used in a defendant’s control tests.”