Articles Posted in Breath Testing

Evidence of a driver’s blood alcohol content (BAC) is a critical tool for prosecutors in driving while intoxicated (DWI) cases. Under the New Jersey DWI statute, a driver with a BAC of at least 0.08 percent is presumed to be impaired. BAC evidence can come from tests on a sample of a driver’s breath or blood. Because of the importance of BAC evidence in DWI cases, New Jersey makes it a separate traffic offense to refuse to submit a breath sample, punishable with a fine and license suspension. Some states make refusal a criminal offense, meaning that it could result in jail time, and require submission to both breath and blood testing. The U.S. Supreme Court considered a Fourth Amendment challenge to criminal refusal statutes last year. Although New Jersey’s refusal statute does not impose criminal penalties or require blood testing, the court’s ruling in Birchfield v. North Dakota is important for DWI defendants all over the country.

Anyone who drives on public roads in New Jersey has, according to state law, given their implied consent to breath testing in a DWI investigation. This allows the state to charge anyone who refuses to submit a breath sample with a traffic offense. New Jersey law does not require drivers to submit to blood testing, however, unless police obtain a warrant. The defendants in Birchfield challenged statutes in Minnesota and North Dakota that impose criminal penalties for refusal. The North Dakota law included both breath and blood samples.

The Fourth Amendment generally prohibits “searches and seizures” without a warrant supported by probable cause to believe that a search will yield evidence or contraband. Numerous courts have held that breath and blood testing are “searches” within the meaning of the Fourth Amendment. Courts have also recognized exceptions to the warrant requirement, however. The “search incident to arrest” exception, for example, allows police to search a person during an arrest. Police may also claim that “exigent circumstances,” such as the imminent destruction of evidence, made waiting to obtain a warrant impractical.

Police departments throughout New Jersey use the Alcotest 7110 MKIII-c device to conduct breath tests on individuals suspected of driving while intoxicated (DWI) in order to determine a person’s blood alcohol content (BAC). Accuracy is critical for these devices, since state law imposes penalties based almost entirely on BAC.

State law creates two tiers of first-time DWI offenses based solely on BAC. A BAC of 0.08 percent or above creates a presumption of impairment. For first offenders, penalties are greater if the BAC is at least 0.10 percent. Blood testing generally provides a more accurate BAC result than breath testing, but as the Chun decision notes, it presents “obvious practical and logistical problems.” Breath testing requires neither a warrant nor a medical professional. All police departments in this state have used the Alcotest since 2008, some since 2005. The device can only provide an “estimation of BAC,” based on the passage of alcohol from the digestive system to the circulatory and then respiratory system. It uses two methods to measure alcohol concentration, which Chun describes as “infrared (IR) technology and electric chemical (EC) oxidation in a fuel cell.” The EC measurement is the more controversial of the two.

The Alcotest’s EC technology creates a catalytic reaction that oxidizes alcohol in the breath sample, creating an electrical charge that the device can measure. The accuracy of this measurement requires careful maintenance. A “simulator solution” used to calibrate the device must be maintained at a precise temperature. Chun requires the use of a thermometer that meets standards set by a federal agency, the National Institute of Standards and Technology (NIST).

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New Jersey prosecutors often rely on evidence of a defendant’s blood alcohol concentration (BAC) to prove guilt in driving while intoxicated (DWI) cases. Police officers typically determine a person’s BAC by testing a breath sample. All police departments in this state use a device known as the Alcotest for this purpose. The Alcotest is prone to errors, and it requires continual maintenance. We were involved in a New Jersey Supreme Court case, State v. Chun, that established specific procedures police must follow to maintain the Alcotest device. Failure to follow these procedures ought to result in suppression of the breath testing results. A pending lawsuit in a New Jersey federal court is calling thousands of Alcotest results into question due to allegedly fraudulent records. The plaintiff in Ortiz v. New Jersey State Police claims that thousands of DWI defendants throughout the state would have challenged the BAC evidence in their cases, had they known about the alleged failure to follow the procedures established by Chun.

Prosecutors can establish the required elements of DWI without BAC evidence, but state law gives them a compelling reason to prefer such evidence. A defendant with BAC of 0.08 percent or higher—commonly known as the “legal limit”—is presumed to be impaired within the meaning of the DWI statute. BAC of 0.10 percent or higher can result in even greater penalties. Anyone driving a vehicle on public roads in New Jersey, according to state law, has given implied consent to provide a breath sample on suspicion of DWI, and refusal to do so is a separate motor vehicle offense.

Devices that purportedly use a breath sample to measure BAC first appeared in the mid-20th century. The Alcotest 7110 MKIII-C became the device for New Jersey law enforcement during the early 2000s. It uses two methods to measure BAC: infrared spectroscopy and electrochemical cell technology. Regular maintenance and careful calibration are what the State says make the process reliable. The purpose of the Chun decision was to attempt to ensure that this happens.
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New Jersey’s driving while intoxicated (DWI) laws allow prosecutors to prove impairment by alcohol in several ways. Evidence of blood alcohol content (BAC), determined by a breath, blood, or urine test, is a well-known method. Prosecutors may also offer witness testimony, particularly testimony by an arresting officer and others who observed the defendant at the time of the arrest. The New Jersey Supreme Court has held that no particular expertise is required to form an opinion, which would be admissible in court, that a person is intoxicated based on observation of the person. The New Jersey Appellate Division recently ruled in State v. Colabella that a BAC below the legal limit for DWI did not supersede officer testimony regarding a defendant’s intoxication in a DWI case. Even though the person’s BAC was not high enough to create a presumption of impairment, the court accepted other evidence.

A BAC of 0.08 percent creates a presumption of intoxication under New Jersey law. This BAC amount is commonly known as the “legal limit” for DWI, and a DWI offense based on BAC evidence is often known as “per se DWI.” New Jersey law makes it a separate offense to refuse to submit to breath testing. This indicates how important the state considers BAC evidence, but it is not absolutely required for a DWI conviction. The DWI statute defines the offense as driving “while under the influence of intoxicating liquor” or other substances, or with a BAC of 0.08 or higher. Prosecutors can introduce evidence that someone was “under the influence” through officer testimony about how the defendant was driving, their demeanor and appearance, the odor of alcohol, and their performance on field sobriety tests (FSTs).

The defendant in Colabella challenged a DWI conviction when BAC test results showed a BAC below the legal limit. According to the Appellate Division’s opinion, an officer pulled the defendant over for an illegal turn and an expired inspection sticker. The officer testified at trial that he detected a “strong odor of alcohol” coming from the vehicle. He also stated that the defendant had “slow and slurred” speech and “blood shot and watery” eyes, all indicators of alcohol impairment. The defendant reportedly admitted to consuming one beer and some ibuprofen.

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In order to prove impairment in a driving while intoxicated (DWI) case, New Jersey prosecutors can present the arresting officer’s testimony about their observations of a defendant and the result of chemical testing that shows a defendant’s blood alcohol content (BAC) shortly after their arrest. Since DWI statutes in all 50 U.S. states create a presumption that a person is impaired if their BAC is 0.08 percent or higher, prosecutors often prefer to present chemical testing results. New Jersey law essentially requires drivers to submit to breath testing, but courts have set limits on when police may collect blood or urine samples. A recent article in the publication Vice documents an incredibly troubling—and frankly, cringe-inducing—practice of collecting urine samples by force.

The U.S. Supreme Court ruled in Schmerber v. California in 1966 that police may collect blood samples without a warrant in DWI cases, although it placed significant limits on that holding in 2013 in Missouri v. McNeely. The New Jersey Appellate Division held in Jiosi v. Township of Nutley in 2000 that Schmerber “did not provide a carte blanche exception to the warrant requirement whenever there is probable cause to believe a suspect is under the influence of alcohol or drugs.”

If police obtain a warrant for a blood or urine sample, the question then becomes which measures they may use to obtain that sample. New Jersey’s implied consent statute holds that anyone who drives on public roads in this state has consented to providing breath samples for BAC testing. It also states, however, that chemical tests cannot “be made or taken forcibly and against physical resistance thereto” by a DWI suspect.

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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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The Fourth Amendment to the U.S. Constitution prohibits “unreasonable searches and seizures” by police, requiring them first to obtain a warrant from a judge. The U.S. Supreme Court is currently considering a Fourth Amendment challenge to state laws regarding “implied consent,” by which anyone operating a motor vehicle on that state’s public roads is considered to have consented to breath testing in investigations of suspected driving while intoxicated (DWI). Unlike New Jersey’s implied consent statute, the statutes at issue, from Minnesota and North Dakota, impose criminal penalties, including jail time, for refusing to submit to breath testing. The court’s eventual decision in Birchfield v. North Dakota is still likely to have an impact on New Jersey DWI law.

Evan Levow, President of the DUI Defense Lawyers Association (DUIDLA), was part of the amicus team from DUIDLA that submitted a brief to the U.S. Supreme Court in this case.

New Jersey law defines refusal as a traffic offense, which is generally not subject to as great a penalty as a criminal offense. A New Jersey refusal conviction results in a license suspension and a fine, but no jail time. For a first conviction, the period of license suspension is seven months to one year, and the fine is $300 to $500. This increases to two years’ suspension and a $500 to $1,000 fine for a second offense, and 10 years and $1,000 for a third or subsequent conviction. Penalties are further increased if an offense occurred in the vicinity of a school.

The North Dakota statute being challenged in Birchfield includes refusal in its definition of DWI, making it a misdemeanor or felony offense to refuse “a chemical test, or tests, of the individual’s blood, breath, or urine.” New Jersey’s law, it is worth noting, only requires breath testing. The penalty for a first offense does not appear to include jail time, but a second offense carries a mandatory minimum of 10 days in jail. A felony offense includes “at least one year and one day’s imprisonment.”

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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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New Jersey prosecutors can use evidence of a defendant’s blood alcohol content (BAC) to establish guilt in a case of alleged driving while intoxicated (DWI). A BAC of 0.08 percent or higher creates a presumption of impairment. New Jersey law effectively requires drivers, when a police officer suspects DWI, to submit a breath sample for BAC analysis, on penalty of a fine or license suspension. State law also requires officers to read a “Standard Statement” to a driver prior to administering a breath test. A defendant recently appealed her conviction for a refusal to submit to breath testing by challenging the legal sufficiency of the Standard Statement. While the Appellate Division ruled against her, its opinion in State v. Quintero offers a useful overview of New Jersey refusal law.

Simply by operating a vehicle on public roads within this state, drivers in New Jersey are considered to have given “implied consent” to breath testing. A refusal to submit to breath testing after an arrest on suspicion of DWI is considered a traffic offense, separate from the offense of DWI. A first-time refusal offender could face a license suspension of seven months to one year, and a fine of $300 to $500. This increases to a two-year suspension and a $500-$1,000 fine for a second offense, and a 10-year suspension and a $1,000 fine for a third.

The “implied consent” law requires people to provide evidence that could be used against them by prosecutors in municipal court. Despite this, courts have generally held that it does not violate the Fifth Amendment’s privilege against self-incrimination. The self-incrimination privilege protects a person from being compelled to testify against themselves, and courts have held that submitting a sample of breath is not “testimony.”

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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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