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NJ DWI prosecutions are about to change significantly. Due to litigation in a case that I filed in front of the New Jersey Supreme Court, State v. Chun, the state has acknowledged that the Alcotest test machine is being scrapped in New Jersey.

Five years ago, in March 2008, the New Jersey Supreme Court ordered nine software changes to the Alcotest machine in order to make it reliable for use in New Jersey. This was after three years of litigation as to the scientific reliability of the machine. However, in the five years since the Chun decision, the State has implemented none of the required software changes to the machine.

In December 2012, we discovered that the data posted online from machines statewide was incomplete and corrupted. As a result, along with co-counsel, I filed a motion to compel the State to reformat the online information, and to comply with the original Chun order. The State replied to the motion, admitting that the online information was, in fact, incomplete. The State further indicated that it did not and could not comply with the Supreme Court order from 2008. In its responsive brief, the State asks that the Supreme Court absolve it of the requirement to fix the software in the Alcotest. The State announced that the Alcotest was going to be retired by the end of 2016, and that it was seeking a new breath testing instrument by that time. Rather than implement any new software, and to avoid any further challenges to the scientific reliability of the machine, the state asked the Supreme Court to allow it to continue using the Alcotest until it found a new machine by the end of 2016.

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In a New Jersey DWI case, the prosecutor must prove the basic elements of the offense. The simplest of those elements is whether the individual arrested actually operated the motor vehicle.

Often, New Jersey DWI arrests are made as a result of tip call, or someone calling into the police department reporting an erratic driver. The caller will sometimes give the license plate number of the vehicle, which can then be traced to the owner’s residence. If the police then locate the car in the driveway of the residence, without that driver in the vehicle, there is a question as to who operated the vehicle. Unless the caller can identify the driver, or if the driver admits to operating the vehicle, the state will have a difficult, if not impossible time, in establishing who operated the vehicle.

Even if operation is established, the state must still prove that the operator drove the vehicle while intoxicated. Depending on how long the vehicle was stationary at the residence, it may be difficult for the state to establish that the driver did not drink alcohol once the motorist arrived at the residence.

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As a New Jersey DWI lawyer that only practices DWI law and nothing else, the first question I am often asked is, “What is your fee?” I don’t like that question, because it doesn’t take into account the reality of why a person is searching for a lawyer to defend one of the most serious charges that the person will likely ever face.

My answer is, “It depends on what you mean by ‘affordable’.”

You can spend anywhere from $750 to $7500 in initial fees. Chances are that if you are on a limited budget, say a couple thousand, what you define as affordable, may end up costing you a lot more in the end. For instance, if you hire someone that doesn’t have the knowledge or skill to really fight your case, what are you spending your money on? If you are convicted, as a first offender, you will not only pay the $700 or so in court costs, but there might be an interlock requirement for your car depending on your breath reading, which will cost you more than $1000.00; you will be surcharged by the State $3000, and your insurance company will separately surcharge you anywhere from $3000 to $10,000 or more over three years.

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As a New Jersey DWI lawyer who vigorously fights for my clients, I am honored to have been selected to Best Lawyers in America® for the fifth consecutive year. Today, I received the following email from Steve Naifeh, President of Best Lawyers:

“Congratulations on having been selected by your peers for inclusion in the 2012 edition of The Best Lawyers in America® in the practice area of DUI/DWI Defense. For nearly three decades, Best Lawyers has been regarded – by both the profession and the public – as the definitive guide to legal excellence in the United States.

“Selection to Best Lawyers is based on an exhaustive and rigorous peer-review survey (comprising more than 3.9 million confidential evaluations by your fellow top attorneys) and because no fee or purchase is required to be listed, inclusion in Best Lawyers is rightly considered a singular honor. Our annual, advertisement-free publication has been described by The American Lawyer as “the most respected referral list of attorneys in practice.”

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The most important case in New Jersey DWI history is State v. Chun, decided in 2008, which set the standards for DWI defense and prosecution for breath testing cases statewide. Despite significant evidence to the contrary, the New Jersey Supreme Court in Chun determined that the new Draeger Alcotest 7110 MKIII-C breath testing machine was scientifically reliable.

In Chun, the reliability of the machine was based on the safeguards of the testing procedure, one of which was an apparatus known as an Ertco-Hart Digital Thermometer. This thermometer insures that the temperature of the various simulator solutions used for calibration of the Alcotest during the control and linearity testing are at the required 34.0 degrees Celsius, with a tolerance of plus or minus 0.2 degrees.

These Ertco-Hart digital thermometers were calibrated by Draeger, which also supplied a NIST (National Institute of Standards and Technology) Certificate of Traceability with each calibration. Draeger, however, decided it would no longer produce the certificates of calibration, and the Ertco-Hart digital thermometer used by the State is no longer manufactured. As a result, the required calibration had to be done with a different digital thermometer.

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A New Jersey DWI stop, arrest or conviction for an an illegal immigrant involves special and significant concerns. The immigrant has no driver’s license or other documents to establish the privilege to drive or to be in this country, and the arrest and conviction may result in his or her deportation.

According to an article in USA Today, published at http://www.usatoday.com/news/washington/2011-07-22-criminal-immigrants_n.htm, drunk driving arrests or convictions are resulting in an increasing number of deportations. Until recently, this was not as big of an issue for New Jersey DWI arrests, as a New Jersey DWI is considered a traffic offense and not a criminal offense. New Jersey is one of only two states to categorize DWI as a traffic offense.

However, depending on how Immigrations and Customs Enforcement (ICE) views the arrest, conviction and circumstances of the New Jersey DWI arrest, even a New Jersey DWI arrest or conviction could form part or all of the reasoning for ICE to commence deportation procedures. It is therefore extremely important to hire a qualified New Jersey DWI attorney to review your case and fight the charges against you. You should also consult with immigration counsel to determine the possibility or likelihood of deportation.

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Police departments in many towns in New Jersey are now utilizing portable hand held breath testing devices known as preliminary breath testers, or PBT’s. A PBT can either report an actual breath test result in numerical format such as 0.08% breath alcohol, or it can simply show a positive or negative result, signifying whether alcohol is present in the breath or not.

The PBT’s are generally supposed to be used at the end of the investigation, and not as the basis to continue an investigation. The theory is that once the officer confirms the presence of alcohol, any subjective evidence collected thereafter, such as field exercises administered to the suspect and interpreted by the officer, may be tainted by the positive result on the PBT. Therefore, PBT’s are intended to be “confirmatory” devices once the officer has undertaken other subjective testing.

No one ever has to submit to a PBT roadside. The implied consent law, which states that a driver in New Jersey must submit to breath testing where an officer has reasonable suspicion that he or she is under the influence of alcohol, applies only to evidential breath testing on an approved machine, such as the Alcotest 7110 MKIII-C, which is the only approved evidential breath testing machine currently in use in New Jersey.

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As a New Jersey DWI defense attorney, I always review my client’s prior convictions to determine which, if any, can be overturned or to determine if the effect of the conviction can be minimized for sentencing issues in the current pending case. I have written in this blog quite a bit about New Jersey Post Conviction Relief, or PCR, practice, because it is so important in the assessment of an alleged multiple offender’s case.

A case that was recently decided by the Appellate Division in New Jersey, State v. Weil (decided July 5, 2011), outlines the PCR process and what is needed to seek relief from the courts.

Petitions for PCR must be filed in the court where the original conviction occurred. In a case called State v. Bringhurst, the Appellate Division stated that the time limit for filing a PCR petition in a DWI case could be relaxed from the general five year rule, since the prior conviction would “be of no moment unless and until there was a subsequent DWI conviction.” If the prior conviction is more than five years old, the defendant has to establish that any delay in filing was not the result of neglect or some other disqualifying reason. In relaxing the time limitation, the court will consider the extent and cause of the delay, whether there is any prejudice to the State, and the importance of the claim.

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There are still significant opportunities to defend New Jersey DWI Refusal charges after the New Jersey Supreme Court’s decision in State v. Schmidt on May 26, 2011. The most important thing to remember when addressing the defense of a refusal charge is, never assume that simply being charged with a refusal means that a conviction will automatically follow.

Understanding of the law and the individuals involved is key to attempting success in what appears to be a very difficult charge to defend.

Schmidt now states the general proposition that if you blew into the machine but didn’t give a complete sample that the machine “accepted”, you cannot claim that the officer should have then read you the second part of the implied consent warning as a defense to the charge. This doesn’t mean, however, that you will automatically lose your case and suffer the consequences of a refusal charge.

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Until May 26, 2011, there was a defense to a refusal charge that you had attempted to blow into the machine, but the machine did not register or accept the breath sample. However, this is no longer a defense.

This is how the defense worked: Implied consent warnings are eleven paragraphs of written warnings read to you by the police officer in the police station prior to the breath testing. The warning states that if you do not submit to the breath testing you will be given a separate ticket for refusal with separate penalties from a DWI conviction. If you started to give a breath sample, but for any reason were unable to give a complete sample that the machine accepted, the officer would likely have charged you with refusing to submit to the testing. However, if the officer did not read the “Additional Statement” that is printed after the eleven paragraphs, then you would claim that you were not adequately warned at that point that failure to complete the testing would result in a refusal charge.

This defense was intuitively sound, since you had not actually refused to give a breath sample, and had in fact provided a sample. The officer should have separately advised you that you would be subject to a refusal charge where you had already blown. Then, you would have been on notice to continue to attempt to blow into the machine, rather than stop, subjecting yourself to a separate suspension for refusal.

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