Articles Posted in Breath Testing

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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The device used for breath testing by New Jersey police in investigations of suspected driving while intoxicated (DWI), known as the Alcotest, has come under significant scrutiny several times in recent years. In order to ensure the accuracy of the results produced by the device, police must perform regular maintenance and calibration. Our New Jersey DWI lawyers were involved in a case before the New Jersey Supreme Court in 2008 that produced a set of procedures police must follow for Alcotest results to be admissible in court, including standards for device maintenance and calibration. Starting in 2016, allegations of misconduct by a police sergeant in charge of maintaining Alcotest devices in five counties called over 20,000 DWI cases into question. In July 2019, the New Jersey Supreme Court announced that a four-judge panel would review those cases, and could grant post-conviction relief (PCR) when appropriate.

New Jersey’s DWI statute allows prosecutors to prove that a defendant was impaired with evidence of blood alcohol content (BAC). A BAC of 0.08 percent or higher creates a presumption of intoxication. Police throughout the state use the Alcotest to perform breath tests on DWI suspects. In State v. Chun, the state supreme court addressed concerns about the Alcotest’s accuracy and reliability. Its 2008 decision in that case requires police to follow specific calibration procedures, and to document routine performance of those procedures. Prosecutors seeking to prove DWI with BAC evidence must produce the most recent maintenance report predating the use of a device by a defendant.

A 2016 indictment against a former sergeant with the New Jersey State Police accused him of filing false Alcotest maintenance reports for devices in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. An investigation found that 20,667 DWI cases from 2008 to 2016 relied on devices with potentially false documentation. The state supreme court appointed a special master to review the matter. The special master issued an order in November 2017 staying all cases involving potentially-affected Alcotest machines. Her investigation found that the falsified records called a substantial number of DWI cases into question. The state supreme court affirmed this report in a November 2018 ruling.

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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.”
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Prosecutors in New Jersey may offer two types of evidence to prove guilt in driving while intoxicated (DWI) cases. First, they may introduce testimony from police officers and others who witnessed a defendant’s appearance and demeanor. This may include testimony about field sobriety tests, or testimony from officers trained as drug recognition experts. The second method allowed by the New Jersey DWI statute is evidence of blood alcohol content (BAC) of at least 0.08 percent. Most police departments in New Jersey use a device known as the Alcotest to collect breath samples and test them to determine a DWI suspect’s BAC. A landmark 2008 decision by the New Jersey Supreme Court, State v. Chun, established standards for the use of these devices in order to maximize their accuracy. One rule created by the Chun decision requires women who are over sixty years of age to provide a smaller breath sample than other people, based on findings that women at that age are generally unable to provide as much breath as their male peers. A 2013 follow-up order in the Chun case limited the state’s ability to prosecute women over the age of sixty for refusal to submit a breath sample.

New Jersey’s implied consent statute requires drivers to submit to breath testing in DWI investigations. Refusal to do so is a separate motor vehicle offense, punishable by fines and driver’s license suspension. The Alcotest requires an individual to blow into a tube connected to the device for a sustained period of time, in order to provide the 1.5 liters of air needed for the test. The individual must seal their lips around the tube so that no air escapes while they are blowing. New Jersey courts have held that an individual may be found guilty of refusal for repeatedly failing to provide an adequate breath sample, such as by failing to seal their lips around the tube or failing to blow for long enough.

Prior to the 2008 ruling in Chun, a court-appointed special master issued a report that recommended various standard procedures for administering the Alcotest. This included the 1.5-liter minimum volume of air. The special master also noted that the evidence supported a lower required volume for women older than sixty. The court reviewed research showing that, after age sixty, women’s average volume of breath was 1.4 liters. This average volume decreased by 0.1 liter every ten years afterwards. The court accepted these findings and ruled that women over the age of sixty must only provide 1.2 liters of air. It also dismissed possible objections to the two standards under the Equal Protection Clause.
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Most New Jersey police departments use a device known as the Alcotest to measure blood alcohol content (BAC) in breath samples submitted by individuals suspected of driving while intoxicated (DWI). Under New Jersey DWI law, a person with BAC of at least 0.08 percent is presumed to be legally impaired. In 2008, we were involved in a case before the New Jersey Supreme Court, State v. Chun, that established statewide procedures for calibrating and maintaining Alcotest devices and administering breath tests. In 2016, a sergeant with the New Jersey State Police was charged with allegedly falsifying Alcotest calibration records. The New Jersey Supreme Court has now effectively tossed out Alcotest results in thousands of cases involving machines under that sergeant’s supervision. The court’s decision in State v. Cassidy, issued on November 13, 2018, is likely to have a substantial impact for months to come.

The Alcotest 7110 MKIII-C requires careful calibration to ensure reliable results. The Chun ruling held that Alcotest results are admissible to establish BAC in DWI cases. It also held, however, that police must follow specific procedures to maintain and calibrate the devices, and that prosecutors must make documentation available about the maintenance and calibration of the device used in each case.

The “0.10 simulator solution” used in Alcotest control tests must be maintained within a specific temperature range. Chun requires measurement of this temperature with a thermometer that is traceable to standards established by the National Institute of Standards and Technology (NIST). A “Calibration Report” and “Certificate of Analysis of the 0.10 Simulator Solution” are among the “foundational documents” required by Chun to establish an Alcotest device’s accuracy.
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Police departments throughout New Jersey use a device known as the Alcotest to test breath samples in cases of suspected driving while intoxicated (DWI). New Jersey prosecutors charged a former State Police sergeant with multiple offenses in 2016, alleging that he failed to perform maintenance on Alcotest devices under his supervision, as required by state law, and then filed fraudulent reports stating that this maintenance was performed. The New Jersey Supreme Court recently ruled in State v. Cassidy that as many as 20,000 DWI defendants may challenge their charges or convictions. At the federal level, the Third Circuit Court of Appeals reviewed claims that the former sergeant’s alleged acts violated DWI defendants’ civil rights in Ortiz v. N.J. State Police.

The Alcotest device tests breath samples to determine blood alcohol content (BAC). Under the New Jersey DWI statute, BAC of 0.08 or higher establishes a presumption that the person was legally impaired by alcohol. In 2008, we participated in a landmark proceeding before the New Jersey Supreme Court that challenged the the accuracy of the Alcotest device and the admissibility of its results. While the court’s ruling in State v. Chun affirmed the use of the Alcotest device, it established strict procedures for maintaining and calibrating the device, and for providing documentation to DWI defendants indicating that police departments have followed these procedures.

After the former sergeant was arrested and charged, the New Jersey Supreme Court appointed a special master to determine whether the alleged failure to properly calibrate and maintain Alcotest devices in multiple counties affected the reliability of the evidence produced by those devices. The special master issued a report in March 2018 concluding that the failure to use a particular type of thermometer during calibration, as required by Chun, rendered the results of more than 20,000 tests scientifically unreliable. The state supreme court adopted the special master’s report in November 2018, effectively tossing out the state’s BAC evidence in over 20,000 DWI cases.
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New Jersey law allows prosecutors to establish that a defendant charged with driving while intoxicated (DWI) was legally impaired by showing that the amount of alcohol in their blood around the time of their arrest was above a minimum amount. Most police departments in New Jersey use a device known as an Alcotest to determine BAC by testing a sample of a suspect’s breath. In order to ensure that a device gives accurate readings, it must have regular maintenance and calibration. A 2008 New Jersey Supreme Court decision, State v. Chun, established standards and procedures that police must follow regarding both the maintenance of the device and the manner in which breath samples are obtained. In 2016, a State Police Sergeant was accused of submitting false Alcotest maintenance reports. This led to an order staying all pending New Jersey DWI cases that might involve evidence obtained from devices serviced by this officer. A recent report from a court-appointed special master stated that the improper calibration “undermine[s] or call[s] into question the scientific reliability of breath tests performed” with those devices.

An individual is presumed to be legally impaired, for the purpose of the New Jersey DWI statute, if their BAC is 0.08 percent or more. Prosecutors have used a variety of devices over the years, often collectively known as “breathalyzers,” to measure BAC from breath samples. New Jersey police began using the Alcotest device in the late 1990’s and early 2000’s. By the mid-2000’s, most police departments around the state were using this device. Since a defendant’s BAC measurement is one of the state’s most important pieces of evidence, confirming that the Alcotest reliably gives accurate readings is critically important. We were involved in the Chun case, which resulted in a series of standards for maintaining and calibrating Alcotest devices, and procedures for reporting on the devices’ regular maintenance.

The chemical processes that the Alcotest device uses to measure BAC require careful calibration. The device uses “simulator solutions” as controls, which must be kept within a specified temperature range. The individual performing the calibration must use a certain type of thermometer to measure the temperatures of the solutions. If any of the solutions are not within the required temperature range, the device may not give accurate readings. Chun states that maintenance reports, showing that calibrations were performed within these guidelines, must be made available to defendants or their counsel.
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