Mercer County NJ court rules in favor of NJ DWI Defendant on the 20-minute observation period requirement
Mar 20th, 2009 | By Michael L. Saile, Jr., Esq. | Category: Blogs, DUI-DWI-DAI (Drunk Driving)On an NJ DWI appeal from a ruling of the Lawrence Township, NJ Municipal Court, defense attorney, Robert Ramsey, convinced a Mercer County NJ Superior Court judge to exclude the breath test reading due to the Lawrence Township police officer’s failure to recall observing the NJ DWI defendant for the required 20-minute observation period before conducting the NJ Alcotest.
In this case two Lawrence Township police officers booked, conducted drunk driving field sobriety tests, and administered the NJ Alcotest at the Lawrence Township NJ police station.
New Jersey is similar to many other states which require the police officer to observe a DWI defendant for a 20-minute period before conducting a DWI breath test. The police officer is required to make sure that the defendant does not ingest any sources of additional alcohol, regurgitate, or burp/belch. All of these actions would not result in accurate breath test due to mouth alcohol.
The Superior Court ruled against the Mercer County NJ prosecutor by stating that the 20-minute observation rule was required by State v. Chun. The Court stated the police officer did not have to watch the DWI suspect continuously, but did have to observe the suspect in close proximity and with the police officer’s senses (not just sight).
Also more than one police officer can partake in the observation period so that one officer can do another task, such as getting the NJ Alcotest machine prepared for the DWI breath testing.
In this case the Lawrence Township police officer could not testify under oath that the NJ DWI suspect did not regurgitate or burp/belch, and therefore, the State could not prove its case.
If you have been charged with NJ DWI, Michael L. Saile, Jr., Esq. of Saile & Saile LLP can provide you with an aggressive DWI defense.
As much as this decision is great, is is a non published decision, good luck getting a defense attorney in nj to hand in a non published case law, . lol,that is worse that anything, ……. and now, all the offivcers in nj are on njotice to say they observed the defendant whether thewy did or nort, lol, so who does this decision help, …? the onex edefendant, and now all defendants are screwed, . …. and thewir is no way a defense attornewy would try to get this in, because it means bringing in all 20 minute rulings he is aware of, because it is a non published case, …… mr saile, give the real poop when you make commentys, come on, please
if i could only get a trial, it is over 42 months, 21 court appearance, where is my god dammed trial?
not even one hearing on evidence against me has taken place,….. my god man, where is the constitution? basic rights
Hard to beleive I wrote the comment pasted below on July 3, 2007,….. And now my case is more than 42 months old and 21 court appearances, without a hearing yet to take place on the charges against me.
I have learned so much since I wrote that in July of 2007, ….. such as the NJ Supreme Court ORDERED the cases to proceed to trial on Jan 10, 2006, and that order stayed in place until march 17, 2008 , when the order was vacated in the final decision in state v chun.
The memo i talk about in july of 07 writting was just for people coming in on post conviction relief, had nothing to do with me getting a trial.
63 Responses to “Attention NJ DUI Defendants waiting on the new NJ Alcotest!”
Jim Says:
July 3rd, 2007 at 11:29 am I have been waiting 22 months for my dui trial in NJ. I have appeared 9 times thus far with an attorney. As of my last appearance, on June 28th 2007, the prosecutor still has not handed over about 50 percent of the foundational documents in discovery required by the law division. My attorney showed me the check list and a lot of items were still missing. My attorney has not made a motion to compel discovery as of yet. My next court date for my 10th appearance is in mid August. It is not clear if they can trial me on that date. My alcotest reading was 0.09 and there was no accident or any other circumstances. I was not drunk. I belive the entire case against me at this point is the alcotest reading of 0.09. I have seen a memo from the state to all courts stating all reliability hearings in municipal court on the alcotest are stayed pending the final decision in Chun. I think my attorney would challange the reding at the municpal level. Can they trial me in August or no? Also, at what point in time does it become prejudice that the prosecutor has not turned over the required discovery documnts? This case has caused me increased stress and anxiety over the past 22 months. Not to mention the time and money for the 9 court appearances over this time. At what point can we say the prosecutor failed to implement the duties of his office?
Thanks for your consideration of a pending response.
Jim
and in reference to the comment i posted above today, ……. i was sent home 2 weeks ago from court, being told by my attorney discovery not complete,……. gee, where have i heard that one before, …. and yet nothing ever goes on the record, …. it’s all judges chambers or prosecutors office conferences, …. no one wants anything on the record, ….
to a defendant, especially one that has been waiting as long as me, and has made so many appearances, it is far beyond frustrating, i look at it as complete unlawful activity, … that all my rights to due process have been removed, ….. i cant even get a hearing, ….. how many more times do they want me to come to court at the municipal level for this?, …..
not only that, but the results have devastated my life, losing over 300,000 in wages and earnings, …. the stress depression and anxiety making me basically unemployable , ….as well having to stay here in nj to keep going to court, ….
the reason why…..?
, certainly not my fault, ….. i paid a big time attorney a lot of money, and fully expected a trial pretty fast, within a year of the charge, … and would hacve been able to get on with my life after that, ogf course, possibly being able to reopen the case with post conviction relief at a later date after chun was decided, …. an d this is what the nj supreme court intended,…
especially when it comes to a nj supreme court ORDER, ……it is hard tro beleive the municipal court, prosecutor, and defense attornys, would mess around and conspire to disobey the ORDER, yet they did, and not just in my case, but up to 92 cases in the court where my charge was filed, and in many, probably almost every municipal court in nj to some degree
not that at this point do i want any hearing, ….. i just want to go straight to trial, and let them have to prove each element, the 20 minute rule, everything ,… and cross examnine each of the 2 officers 5 hours each,….. have an expert testify , have me testify on the need for raw data for the alcotest, …..
just about the only seperate hearing i would want, is on speedy trial, in a seperate stand alone hearing, with me testifying to barker v wingo, and my attorney making my arguement about the clear and plain nj supreme court order, THAT ORDERED THE CASE TO PROCEED TO TRIAL OVER 3 YEARS AGO.
AS FAR AS THE EVIDENCE, I SAY, LET THE PROSECUTION HANG THEMSELVES, … THEY CANT PROVE ANYTHING.
just 2 weeks ago on my last court appearance, the 20th, my attorney said afterwards the serial numbers are illegible on the certificates, .and if they went to trial on it, the bac would be thrown out
ok then, after 20 appearances and 42 months, isnt that suppose to go on the record?
whewre are my rights?
and that is just one aspect, out of thousands of aspects that could come up during a trial on cross exmination, and after the State rests it case, ….
in fact once the State rests, and they havnt submitted the calcultion saheet to the court, it will be too late for them to do so, … double jepardy, and we get the bac thrown out on that,…. that is just another one of the thousands of aspectys, ….. prosecutors cant be bothered to do simple math the nj supreme court ordered thewm to do in the final decision in chun…
you see what i am saying?
DO THE PROSECUTORS AND JUDGES HAVE AN EDUCATION FITTING THEIR POSITIONS? I DONT KNOW THAT THEY DO.
I DO KNOW THAT ONE COUNTY FAMILY COURT JUDGE, WHEN I WAS A KID, BABYSITTED ME, AND MOLESTED ME XEXUALLY , AND IT IS NOT SLANDER OD LIBEL TO SAY SO, AS LONG I FULLY BELIEVE IT, AND I DO….
AND HER BROTHER, WHOM I WENT TO HIFHSCHOOL AND COLLEGE WITH, NOT ONLY TOOK LSD EVERY DAY 2ND SEMESTER JUNIOR YEAR IN COLLEGE, HE BECAME A NOW DECTECTIVE IN MONMOUTH CVOPUNTY, BUT BACK IN 1990, A YRAR OR SOP AFTER HE GRADUATED , AFTER MY GRADUATION, HANDED HIS FIRARM TO M NEMESIS, WHO POINTED IT AT MY HEAD, WHILE HIGH AS A KITE
TRUE.
100% ABSOLUTLEY
DO I KNOW OF ILLEGAL MARIJUNA ACTIVTIVITIES, YOU KNOW, THE IRTALIAN MAFIA OPERSTATIONS FOR THE HOME GROWN GREAT WEED, YES I KNOW OF THEWM, ….. DO I KNOW OF ITALIAN MAFIA GAMBLKING OPERATIONS, WITH PIZZA PLACES BEING FRONTS, YES I DO, I I SENT FREEHOLD TOWNSHOP POOLIC E DEPARTMENT ALL OF IT, AND THEY DO NOTHINBG, …..
appearantly ongoing illegal acfrivities, for drugsd and gambling, that regular, under the radar people are involved in, have nothiing to do with justice, … all they want to do is call me, a good guy, into court every 6-8 weeks for the rest of my life, on a low level , no accidfent, first offense dui, .. while they allow all rreal criminal activity to occur
there are thousadnds, millions of people in nj, that have liove sucessful, inteligent, law abiding adulty lives, after the age of 25, lets say, that were involved in marijuana, coicaine, gambling,. and anthing else at a younger age, ….
come on, i… it is typical; nj suburban upbriging for at least 50% of nj youths,…
and some of these people continued the illegal activities and made millions off it, .. the operations getting so big, the italian mafia is takinbgf theoir piece of it….
100% truth, no true, you are livinmg in a fantasy word
of course this crap is true,
i beared my soul in email to the frehold tewp police dept, and they did nothing,..
now what
they even had a guy, a police officer, force mexicans into oral sex, for fredom, and thwey hide this