New Jersey DWI Attorney Blog

I represented the lead defendant in State v. Chun, the case that has set the standards and procedures for DWI breath testing in New Jersey. So, a recent decision in a case interpreting Chun seems particularly ironic to me, since it highlights the State’s failure to adhere to the New Jersey Supreme Court’s requirements that the State change the make-up of the Alcotest®, the new breath testing machine in New Jersey.

In March 2008, the Supreme Court ruled in Chun that the State has to calibrate the Alcotest® every six months. Prior to Chun, calibration occurred every twelve months. While the Court determined that the Alcotest® is scientifically reliable, the Court left open challenges to the operability of each Alcotest®, that is, whether the Alcotest® machine that was used to test the subject was operating properly and as expected at the time of the testing. This allows for a wide array of challenges that are possible in each New Jersey DWI case by a skilled New Jersey DWI defense attorney.

This new case from the Appellate Division, State v. McConnell, says that failure to recalibrate an Alcotest® machine within the 6 month period does not cause the readings to be automatically thrown out.

Because I was involved in State v. Chun, the case that has defined DWI defense and prosecution throughout the state of New Jersey, I have been fortunate to learn a great deal about the new breath testing machine in New Jersey, the Alcotest® 7110 MKIII-C. I have had the pleasure of passing on some of that knowledge to other attorneys by speaking at local and national seminars on the technical and scientific defenses related to the Alcotest®.

This video is from a New Jersey statewide presentation on Alcotest® defenses. I have given other presentations to attorneys at national speaking engagements in New Orleans, Dallas, Las Vegas, and in Wisconsin and Connecticut.

After the landmark decision in State v. Chun, a significant part of DWI defense in New Jersey breath testing cases focuses on how the machine operated at the time of the defendant or accused’s testing. Challenging the “operability” of the machine is different than challenging the “scientific reliability” of the machine or its process. The latter challenge is now precluded by Chun. Now, the questions center on whether the machine was operating as it is expected at or around the time of the defendant’s arrest.

One of the most important assessments of how the machine is working is done through an analysis of the electronic data that is stored in the machine. This discovery or information obtained from the machine is referred to as the “data download”.

The data download is created every six months or so, when a State Police trooper does the bi-annual calibration on the machine, as required now by Chun. A copy of the information is downloaded onto two CD’s. One is taken to West Trenton and will eventually be made part of a statewide database that is supposed to be made available to the public “forthwith”, or immediately after Chun was decided in March 2008. The other disc is left in the local police department and is available for “discovery” by defendants tested on the machine.