New Jersey DWI breath testing cases are complex, especially due to the new machine being used in New Jersey, the Draeger Alcotest 7110 MKIII-C. While this machine has been held to be reliable by the New Jersey courts, there are still significant issues to challenge regarding the machine and overall breath testing for New Jersey DWI arrested drivers. You just have to know what to look for, and what to ask for to review, to assess your challenge to the machine and establish your defenses.
Breath test results are generally admissible in evidence when the machine is shown to be in proper working order, when the breath test is shown to have been administered by a qualified operator, and the machine was used in accordance with accepted procedures.
It is the job of the defense attorney to investigate these areas. This is done through a process called “discovery”, where the defense seeks records regarding the machine, the arrest, and anything else relevant to the arrest and defense of the case from the State. This is done through a letter request to the prosecutor, copied to the police department and the Court Administrator. Our courts have said that “inquiry regarding these facts is extremely material.” Information concerning the conditions under which the tests were held, the machine operator’s competence, the particular machine’s state of repair and identification and documentation regarding the machine used for defendant’s tests are all relevant inquiries.
Of particular importance in Alcotest breath testing cases is the digital data log that is downloaded from each machine every six months. In a case called State v. Chun, which set the standards for DWI defense and prosecution of breath testing cases in New Jersey, the court acknowledged that the State should create and maintain a centralized database of information from each machine, regularly uploaded through modem. Defendants should have access to centrally collected and maintained data on their own cases, as well as to the compiled scientific data on matters involving others that has been redacted to shield the personal information related to those other individuals.
Review of this digital data is often critical to formulating a defense in an Alcotest breath testing case. The data is immense in scope, and can yield a significant amount of important information on your own breath test, as well as how the machine was operating over a period of time.
With the Supreme Court’s decision in Chun that the machine is scientifically reliable, one of the better ways to challenge the machine now is how it has operated over a period of time. If you can establish that the particular machine you were tested on is operating irregularly, that is not a challenge to the scientific reliability of the machine. It is a challenge as to the machine operability. The cause of the problem may lie with the machine and it’s inner functioning, or it may be how the machine was operated by the officer or officers over time.
In any event, it is critical to have a qualified DWI defense attorney review the facts and circumstances of your case. I represented the lead defendant in the Chun case. That was a fantastic experience that yielded an incredible amount of information that I am able to use in the defense of my clients.