New Jersey Court Voids DWI Conviction Based on Tainted Alcotest Evidence

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.

An indictment issued in 2016 accused a coordinator at the New Jersey State Police’s Alcohol Drug Testing Unit of falsifying maintenance and calibration records for Alcotest devices in five counties. The New Jersey Supreme Court appointed a special master to review the impact on cases that included evidence provided by those Alcotest devices. The special master concluded that the falsification of records “undermine[d] the reliability of the Alcotest.” The Supreme Court adopted the special master’s findings in its 2018 ruling.

The Appellate Division’s 2019 ruling involved a case that began in 2011, when police arrested the defendant. The municipal court convicted him based on both BAC results and the observational method. After a de novo trial in 2014, the Law Division affirmed the per se DWI conviction. It did not address the observational evidence. The case went back and forth between the Appellate Division and the Law Division until late 2017, when the special master stayed all pending cases involving Alcotest devices tested by the indicted police coordinator.

The New Jersey Supreme Court’s 2018 ruling lifted the stay. The defendant’s appeal included points addressing both the BAC and observational evidence. The Appellate Division ruled that “all of the issues raised by defendant pertaining to the administration of the Alcotest are moot” in light of the 2018 ruling. It remanded the points about observational evidence to the Law Division.

New Jersey DWI attorney Evan Levow represents people who are facing charges in New Jersey municipal courts. He can guide you through the municipal court system, help you understand your rights and options, and prepare the best defense for your case. Please contact us online or at (877) 593-1717 today to schedule a free and confidential consultation to see how we can help you.

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