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.
This case can easily be mis-interpreted. It doesn’t mean that you cannot challenge readings where the calibration on the machine is more than 6 months old. That would be inconsistent with the ruling in Chun. The timing in McConnell is important. His arrest occurred two months after the ruling in Chun, and the State had not gotten around to recalibrating the 600+ Alcotests® in New Jersey. McConnell claimed that because his calibration was 2 months beyond that period, his readings were inadmissible.
After McConnell, more may be required to mount a successful challenge on the recalibration issue than just pointing out that the recalibration period is greater than six months, but it doesn’t foreclose the defense. Even before Chun, courts have held that failure to follow protocol and procedure makes breath testing results unreliable and inadmissible.
Two and a half years after Chun, the State has still not complied with the Court’s ruling that the software in the machine be modified.
Each case is different and each case must be evaluated on its own to determine what defenses are available to assert. McConnell highlights the fact that DWI practice is more complicated than ever, and that qualified DWI representation is more important than ever.