New Jersey’s New Breath Test
Dec 27th, 2006 | By Michael L. Saile, Jr., Esq. | Category: Blogs, Criminal & Traffic, DUI-DWI-DAI (Drunk Driving)After 40 days of testimony on the effectiveness of Alcotest, the state’s new breath-testing system for drunken driving, Special Master Michael Patrick King closed testimony last week. Following the argument, Judge King will have 30 days to submit his report of recommended factual findings to the Supreme Court. This should occur on or about February 10th. Observers are forecasting a probable court decision in April, which will be two years after the first Alcotest cases began reaching the courts.
The Supreme Court appointed King, a retired Appellate Division judge, last December to evaluate the controversy over the Draeger 7110 as trial judges seemed reluctant to accept its results without a higher court review.
State v. Chun is the case that will ultimately determine if the Alcotest 7110 is sufficiently reliable to be used in New Jersey’s municipal courts in drunk driving prosecutions. The defense will argue first, followed by the Attorney General and the attorneys who have appeared as amicus curiae.
We have attached the NJ Appellate Division and NJ Supreme Court rulings here:
I recently received a DWI in NJ (0.10 on the alcotest 7110). My case is currently “stayed” and is in the NJ Supreme court. How will this court decision possibly impact my case (e.g., possibly lower my BAC of 0.10 to lower levels).
John:
After 14 weeks, 8000 pages of testimony, 11 state witnesses, 2 defense witnesses, almost 400 exhibits, the New Jersey Supreme court finally finished the Chun hearing. There will be some additional briefing by the lawyers and final arguments should be in March 2007. Maybe by April 2007 we will have a final opinion.
First, I would like to caution you that I did not personally participate or attend any of the hearings. I get my knowledge on the status of the issues from other lawyers that did participate.
I believe that ultimately the New Jersey Supreme Court will approve the Alcotest 7110, the new breath test. The former Breathalyzer was 1950’s-1960’s technology. Its hard to believe that a few New Jersey towns are still using the Breathalyzer now. Given the technology boom in the last 15 years, why are we still using a 40+ year-old test?
My prediction is that after all the testimony and review of the science of the new Alcotest 7110, the NJ Supreme Court will decide that it is much more reliable than the old Breathalyzer test. The Alcotest 7110 actually measures alcohol in the breath by two different methods. There is also a printout of the results so that there is no confusion or possible police misconduct with the results. Information involving the testing can be downloaded to a computer and analyzed.
If you are on the border, like you informed at a .10, you very well might have a defense due to the machine’s accuracy. In the past with the Breathalyzer, defense attorneys, like myself, have negotiated downgrades by presenting a credible expert report to the prosecutor arguing that your blood alcohol content should be lower than what the machine measured. In this situation, the defendant would hire an expert to review the police report including the actual readings and specifications of the breath machine, the testing procedures, and the defendant’s drinking experience. An expert who bases his opinion on his education and experience in the field can opine that the machine’s results are higher than an accurate reading.
After being presented with a defense expert report, a prosecutor may offer you the option of the lower blood alcohol content and thereby reducing your penalties involved. In your case, you may be able to lower your possible drivers license suspension from 7 months-1 year down to 3 months.
We highly recommend that you contact a lawyer, if you have not done so already. This is a highly technical field, especially with the new test. We handle New Jersey DUI cases and have the experience of working with an expert and a prosecutor, if you are interested. Good luck!
Can you tell me the status of the DWI case that is currently in the NJ supreme court?
The Special Master, retired Judge King has approved the machine with a couple required modifications.
One of the modifications is that a temperature gauge must be installed on each machine so that it can accurately measure the blood alcohol content in the suspect\’s blood. These types of breath tests are highly dependant on the temperature of the breath being tested. Since human beings\’ body temperature usually differs by up to a degree or so, many of the previous testing could have been inaccurate.
Therefore, the blood alcohol levels in many of the older cases may have to be adjusted. This is good news for defendants that already have cases on hold.
The NJ Supreme Court is now reviewing the Special Masters\’s report and will make a final decision shortly.
Final arguments before the New Jersey Supreme Court regarding the admission of the new NJ breath test for DWI (Alcotest 7110) are to be held April 5, 2007. We believe that the high court will give much, if not full consideration, to the findings and report of appointed Special Master, Michael Patrick King. We will report the final decision as soon as it is released.
John, if your BAC reading was 0.10, the worst possible outcome most likely will be the reading is lowered to the 0.08-0.09 area, which means a 3 month loss of licnese, 12 hours IRDC, and about 865 dollars in fines and fees to the court, if this is your first offense.
The reading will be lowered because the case is extremely strong for Judge King’s recomendations of a 6.58% reduction in BAC result.
However, it is very possible your rights have been violiated by the State in any one of a number of ways. There are also at least 23 defenses to challange the DUI. The attorney Mr Levow has a great website for you to read.
As you have posted a comment on here, you are probably checking into this website from time to time. Read my posts above in the other Alcotest blog area that has 17 posts on it. You will see what my concenrs are.
Dui can be won!!. If you are in the Saile area, you should probably consider him as a possible defense attorney. I am not in his normal working area.
Please kep in mind that the police are not perfect and do make mistakes, forget things, and even say the wrong things on the witness stand. A good defense attorney can exploit that.
Stay strong.
Jim
John,
Let me clarify:
You do not have to plea barin down to 0.08-0.09 charge. That reduction will mosty likely be a matter of law after Chun is decided.
You can still roll the dice on a 0.08-0.09 trial, in which case you have nothing to lose.
The State was instructed by, as curious as that may be in light of all my posts in the other blog, by both the Attorney General and the NJ Supreme Court, for the State, not to plea bargin DUI cases in NJ.
The prosecutor, when faced against a superior defense attorney may however feel the case is not strong enough to proceed.
I strongly suggest you hire a “trial attorney”.
It is your best chance to have the case dismissed or won. I can tell by the effort Mr Saile puts in these blogs that he really cares about the law and defense. It is a great thing (in my opinion).
Not for nothing, but, there was a case in Monmouth County where a police captain was found not guilty by a judge, after trial, even though he blew a 0.19 on the Alcotest, because of local political (with a lower case p)
considerations.
If I were you, I would not accept a 3 month license suspension. Go t trial.
Jim
Here is the link about hthe aquital of a 0.19 Alcotest case.
http://www.redbankgreen.com/redbankgreen/2007/05/judge_cop_looke.html
Sorry, it was a breathalyzer, not aloctest. Monmouth County stil uses the breathalyzer as of the time of this stop, and probably still now.
However, the same argument still aplies, resoinable doubt found even with an extremely high BAC.
My DWI case is currently on hold based on the results of Chun. I was charged with refusal & DWI. According to the court the most I will serve is 7 months after Chun is decided. I blew into the alcotest several times, but do to a medical condition I was unable to give a valid sample and was charged with refusal. My question is….if the alcotest is rendered invalid, could I receive a lesser charge & suspension??
George:
If the Alcotest is held invalid, your case could be dismissed.
A prosecutor could always try your case based on the police officer’s observations of you at the time he or she saw you operating your vehicle.
I have serious doubts about the Alcotest’s flowmeter!
I blew into thing thing, with 4 officers standing over me, cheering me on, to blow harder. The two times I blew into the thing it regisitered a 4.0 liters of breath. The time it regisitered to make the 4 liters was vastly different betwen the two tests.
The flowmeter is noT validated, nor is is calibrated in any way at aLL!
This is actualy a huge issue. The State wants to base a refusal or a good breath sample based ont he amounnt of breath, but the actual flowmeter used to determine this is not calibrated at all. Drager even refused to submit an example flowmeter calibration data!
The whole thing is so wrong, it is completely upsetting!.
read some of my recent posts.
What shoul dhave happened is the State needed to go to experts, smart people involved in analytical testing for a long time, people in the FDA, and put together an outline for an instrument, what it should do, then go to a manufactuer and say, this is what we want, can you make one.
1)technology that works
2)softewqare that can pass international and US standards
3)provide the raw data signals and calucultion on BAC report
4) can be validated – every part, including software, wavelength, flowmeter, lamps, calibrtation, linearity down to the level of a breath sample
5) would be unquestionABLE AS TO THE RESULTS
6) IR spectrum of standard and breath sample printed for each test
This is really what needed to happen.
Then go out and find a company willing to make it, and contract it to be made.
Why was that not done.
We must have idiots working for every branch of government to let something like the Aloctest come in NJ.
Do you think our federal governmant sat around and waited for the stealth B-1 to be made. No. They went to a contractor and said we want a long range stealth bomber that can do this and that, MAKE ONE!
I am not talking about procedure or policy that is something new to the way decisions should be made, are orders for technology to be made.
I feel strongly that in order to take away someones freedom based on an analytical result, the instrument should have and do all the things I have mentioned throughout the over 100 posts I have put on this website.
We are not talking about checking the pH of your pool water.
Just because the vast majority of people do not care or know about the Alcotest and analytical technology, does not mean the government should slack off on doing the RIGHT THING.
The situation is unbelievable!
I RECIEVED MY DWI OVER A YEAR AGO IT IS STILL ON STAY, IS THERE ANY TIME LIMIT THEY HAVE, TO ENFORCE THE PUNISHMENT FOR THE CRIME, SO TO SPEAK.
Ray:
The individual facts and the history of your case should be examined by a lawyer. You do have a right to a speedy trial.
If you search this Blog you will see posts from other people about this speedy trial argument.
I do not verify the accuracy of other people’s posts.
Do you presently have a lawyer on your case?
Not only do you have the right to a speedy trial, you also have the right to a trial.
Not only do you have these rights, but the NJ Supreme Court on Jan 10, 2006, because they feared these rights might be taken away from defendants because of the Chun case, speciaicaLLY ORDERED THE ALCOLTEST DUI CASES TO PROCEED TO TRIAL.
YOU BEEN WAITING A YEAR, IVE BEEN WAITING OVER 27 MONTHS, WHILE THE PROSECUTOR IS GETTING AWAY WITH BEIING IN CONTEMPT OF THIS NJ SUPREME COURT ORDER.
IT IS OUTRAGEOUS!
I just heard from an attorney today that it has been decided that the Alcotest is a valid means of measuring B.A.C. So since my case is on stay, will I receive a letter as to when my license is suspended or will I have to go back to court? Any idea on when my license suspension will go into effect?
George:
Tommorrow, the NJ Supreme Court will be hearing arguments on the reliability of the Alcotest. Whomever gave you this information is wrong.
Have you had a trial yet or have you already plead guilty?
Michael,
I went to trial in October 2007 and was found guilty of DWI and was sentenced to a 7 month license suspension to be served after the Chun Case. So is there still hope of not losing my license at this point?? I am so confused at this point! This has been the most stressful experience of my life all because I didn’t blow hard enough into a stupid, inadequate machine due to a medical condition!
So it was a alcotest, computer reported refusal?
hell yeah you still can come out of this ok, the software driven refusal arguments is one of the chun teams stronger arguments actually.
how long were you waiting for a trial?
are you sure you were convicted of dui and not refusal?
please give more details of what actually went down, because it sounds maybe the judge is also confused.
at any rate, you still can not obly win in chun, but you can then have a reliability hearing after chun, in your local court, according to the chun order, as all reliability hearings are stayed.
i do also find it very intresting that you had a trial, in relation to my case, that is pending now over 27 months.
Also,
there are so many tjhing for the nj supreme court to decide.
one of the bigger issues in chun is a revisiting of crawford in a way, that is, the be able to call everyone who signed any certificate of analysis of any of the standard solutions, and instruments certification, as well as the people performing the analysis.
this would all be part of a relkiability hearing, and your attorney, depending on chun, may be able to have a reliability hearing and call all these people into trestify.
one of the chun attorneys says he wiould call up to 6 people from the state police in every dui case he has, that is what he told the justices on april 5, 2007. and they didnt tell him he couldnt…. not yet.
Hello:
I received a DWI-New Jersey in December 2006. This is my first and only offense. I had three drinks and drove. I did not feel drunk. But I was stopped and my BAC was 0.084. I failed the soberity field test, but I was freezing cold and did not have a winter jacket on. I was also wearing 3″ high heels. I was shaking from the cold weather. I recited the alphabet perfectly. I have an attorney. My case is pending the outcome of the Chun Case.
My question is whether or not my case can be thrown out if a deviation in the machine is found and puts my BAC under the legal limit? If not, can my charges be reduced to reckless driving and mandated community service? I’m in graduate school and this will ruin my career plans if found guilty. Can I have this expunged from my driving record? People make mistakes. I don’t think they should be punished forever. This process has made me look at alchol in a whole new way. I rarely drink anymore because of this situation.
Please provide advice. Your advice is greatly appreciated.
Ok, you bring up some issues. I am not an attorney, but I have been in a similair sitution pending since Sept of 2005! I ahve done a ton of research and have written over 2000 pages on the subject.
Here is what I think..
1-there is no expungment of DUI in NJ if convicted, however, an arrest on this charge may be expunged if founf not guilty.
2- the 0.084 BAC, 0,08% Bac chaarge is very much still in question, and I would not take a plea,you should by a better than 50 % chance win the case based on Chun alone, but that is just my opinion.
3- The State still needs to have all the documents, with all the T’s crossed and I’s dotted to win. – a DUI defense attorney can find mistakes, and belive me, there are many
4- Crawford – the State needs to provide all people who signed any document in relation to the Alcotest – pending to be decided in Chun
5- No, community service is not a lawful sentence in a first offense dui case like this.
6- yes, reckless driving is a plea bargin that some prosecuotrs are offering, and some courts are going along with, dispite the Nj supremme Court ordering the preosecutores and local courts not to accept plea bargind, and nort only in judicial opinion, but in the chun order itself.
7- you have the right to a speedy trial, the most impoortant aspect of the 4 elemtns is your assertion to this right, get this motion into the court in writting as well as on oral record in the court ASAP – it could be grounds for a reversal.
8- it is a definite cost analysis you must make, not only financial cost, but psycoligical cost.
I have no doubt the sate will offer you a reckless plea. A reckless convicxtion is 5 points on your license, higher insurenace, possibel suspension, and a 2nd offense of reckless can be possible jail by statute. However, keep in mind the sate may offer reckless because they know they can not win a DUI trial, or they have violated your rights to speedy trial or tother legal rights, and once you ple guilty to some offens ein the casem your rights are gone.
9-Stay away for drinking and driving, and try not to worry, although whoi am to talk ive been worrying for 28 months
Now, also, from what i belive and from what the chun order idicates, there is no such thing as waiting for Chun to be over in order to have a trail.
I do not want to create friction between you and your attorney… however as i sit here i know you should have a trial.
Now, the point of having a trial is vaild on many levels, the first level being it was ordered by the nj supremre court on jan 10, 2006
however, i want to talk about another level.
It is important to get the officers testimony on record as soon as possible, especially in light of the stay on relianlity hearings, this was, after the officer testify, and a year or more goes by, the officer can be re examined on the testimony in the continuation of the trial, i have personhnaly seen this in a court , and i have read of such occurances on many lawyers websites.
What happens is the officer gets messed up in his mind as to what he previuosly testified to, and is shown to be confused and mistaken, leading to reasonable doubt.
now, in light of chun, some, if not all, defense attorneys in nj, and going along with the state, my contention unlawfully, to no not provide trials…
however, you must try to convince yoyur attorney to do his job and fight for a tRIAL asap.
Does anyone have any idea on when the Supreme Court is making their decision and how it looks??
The NJ Supreme Court is in a tuff position here.
There are valid arguments against the use of the Alcotest, some of which were presented, some of which were not, but can be brought by any defendant at a later date.
Also, the Sachs protocol complicates things because that is calling for insatrument validation, but it would be impossible to validate an instrument like this without having the integration results and picture of scan. The Sachs protocol is a catch 22, and the State, andd Drager, and even the Chuin defense were all ignorantly duped into agreeing tro it. But the NJ supreme Court has not yet adopted it.
Also, there is a dynamic here that is intresting. I was watching tv yesterday, and saw a story about a case where a scientific researcher was appealing a decision in federal court saying he wants a patent to cross breed chimps with humans. It is intresting, becaUSE ALTHOUGH HE IS ARGUING for it, he doesnt actually want it. What he is trying to do it to force the courts to say it is ilegal, because there is no law on the books that says it is ilegal to get a patent for such technology.
This relates to the Chun case because it dawned on me that the Chun defense isa doing the same thing. It is not that they dont want the alcotest in use, they want the Court to rule it is ok, and addsome controls on, so everyone saves face. this would eliminate random defendants from being chuns. howeverr, they went a little too far with what was put on the record, and the sachs protocol screws over all parties withb regards to impossible validation.
now the nj supreme court is in a tight position with what to do.
on top of that, my argument i sent them is valid as well, and now they have probably read it, and hopefully say to themselves, we need to investigate this aspect as well.
to sum up, it is really hard to say what they will do, or when they will do it…. and there is always the possibility of whatever they do, one of the parties ill file application to the us supreme court.
I’ve read the findings of the chun vs. NJ case and something strikes me as being very odd. Although the manufacturer of the alcotest had suggested a certification every 6 months, the state was only performing the calibration once a year, yet the state will STILL accept AIR’s that were produced through machines that were calibrated more than 6 months before a dwi arrest. I understand that the machines will now have to be calibrated every 6 months, but for people who had been tested on machines that hadn’t been calibrated in 8-9-10 months or more, their AIR’s should be tossed. The state is saying that we understand the machine may not be reliable past 6 months, and that’s why we are mandating the bi-annual calibration, but for those of you that are on stay or waiting for trial, too bad. THat’s just wrong.
Is it always better to go to trial, I had an attorney tell me it’s better to plead guilty and accept a minimum sentence, than to go to trial, where they may give you more than the minumum.
tom, no one should have had to wait for a trial. especially after the nj supreme court ordered all alcotest dui to proceed to trial IN JANUARY OF 2006.
I HAVE NOW FOUND OUT THE COURT MY CASE IS IN HAS 92 CASES PENDING TRIAL.
THIS IS A HUGE CONSPIRACY TO OBSTRUCT JUSTICE.
WHAT IS THE COURT AND STATE GOING TO SAY- THAT IN ALL 92 CASES EVERY APPEARANCE WAS ADJOURNED BECAUSE OF DEFENSE MOTION?
THEY MIGHT GET AWAY WITH IT, BUT I AM GOING TO TAKE A STAND AND MAKE MY POINTS
interesting points brought up in these posts. i live in NC and have been charged with my 4th alcohol related charge. the first happened in texas in 1999. it was subsequently dropped because of lack of evidence. the 2nd was in 2003 in Oklahoma. I was pulled over on an anonymous tip, probably from the person who took my order at mcdonald’s. i hired an attorney who advised not to go to trial because of my race and that i would never win. he had the charged lessend from dui to dwi or visa versa. the 3rd was in Connecticut in 2005. i knew i was intoxicated which was confirmed by the test results. i vowed that it would never happen again but failed to commit to the one and only surefire method that would guard against any future arrests, complete abstinence. on thursday of last week, after attending the grand opening of our new office, the officer pulled me for speeding, detected an odor of alcohol, etc. he said he clocked me at 65 in a 45. never-mind the fact that the posted speed limit on that stretch of roadway is 55. i told him that i wasn’t speeding because i had my cruise control engaged at 62.i found myself arrested and facing yet another alcohol related charge. i have finally come to terms that no amount of drinking is acceptable in my world ever again . i am fully prepared to take the consequences of this latest charge should i find myself convicted and jailed however this time i am not going down without a fight. contrary to the officers assertion that i refused the breath test i am completely confident that this in fact did not happen. i blew into his handheld machine on the roadside and also submitted to the FST. at the station i was instructed to submit to a breath test which i did without hesitation, except maybe on the 5th blow after which the officer said i wasn’t blowing hard enough and put me down as having willfully fused the test.. the results were as follows.:
diag pass 1:16am
air blk .00 1:17am
accy chk .07 1:18am
air blk .00 1:19am
sub test .** 1:20am
the machine which NC uses is called the intox ec/ir-ii
i know you do not practice in my stae and are probably not familiar will local statue however i sense a genuine concern on your part for the rights of the accused. this is one reason i felt compelled to post. the other of course is because i am in desperate need of some good advice. i would like to know if you can answer this question for me: do you think that the charge of refusing the breath test will stick, that i will lose my driving privilege for a long time and be convicted of dwi? i realize that the license question and the innocence or guilt question regarding the dwi charge are two separate issuses. it is almost impossible to get my head around the fact that i could be found guilty on the dwi charge when the prinout from the machine clearly shows a reading below the legal limit. any insight to this post would be greatly appreciated and may be of benefit to others. time is of the essence as i will need to schedule an administrative hearing regarding my dl in about 7 days. thanks in advance for your reply.
I cannot comment on North Carolina DUI-DWI law, as I am only licesned in PA and NJ. I suggest that you speak with a NC attorney about your charges.
Perhaps the refusal can be beat? Seems like you gave an adequate breath sample on the first blow…
I think Tom is right. “The state is saying that we understand the machine may not be reliable past 6 months, and that’s why we are mandating the bi-annual calibration, but for those of you that are on stay or waiting for trial, too bad.” The specific alcatest in my case had been calibrated 10 months before my arrest, I tried to use that for grounds of dismissal for my case but the municipal court presecutor said they didn’t apply the six-month rule to retroactive (stayed) cases. So I can assume that I can’t appeal to the superior court and expect them to uphold the 6-month rule either?