Be Careful When Challenging Alcotest Test Results | New Jersey DWI
Appellate Docket No.: A-3138-18T1
Decided September 18, 2020
Submitted by New Jersey DWI Lawyer, Jeffrey Hark
In a recent unpublished decision, the Appellate Division reviewed whether a DWI conviction was properly administered in municipal court.
In State v. Meyer, defendant was involved in a three-car accident in Lacey Township that resulted in personal injuries. An officer took breath samples from defendant with an Alcotest machine at the station. After the tests reported blood alcohol content (BAC) readings above the legal limit, the officer charged defendant with DWI.
On June 20, 2017, defendant entered a conditional plea of guilty in the municipal court to the DWI charge. Several stipulations were entered at the time of the plea: (1) the operator of the Alcotest machine was qualified; (2) the Alcotest machine was in proper working order; (3) the first ambient air sample was taken at 06:42; (4) the second ambient air sample was taken at 06:43; (5) defendant’s first breath sample was taken at 06:44; (6) defendant’s second breath sample was taken at 06:46; and (7) the test results reported a .21 BAC reading.
Pursuant to the conditional plea, defendant preserved the argument that the results of his Alcotest breath samples are inadmissible and, if so, his conviction should be vacated. In State v. Chun, 194 N.J. 54 (2008), the Supreme Court addressed the scientific reliability of the Alcotest and adopted standards and procedures that must be followed by police before an Alcotest report is admitted into evidence. Relevant to defendant’s reservation is the Court’s holding that at least two breath samples are necessary for the results to be valid. Chun discussed possible contamination from one sample to the next whenever the second sample is taken too soon after the first.
Defendant argued the stipulated facts create a reasonable doubt that his breath samples were taken at least two minutes apart. and raise the possibility that the second sample was contaminated by the remnants of the first sample. In support of his argument, defendant offered an expert report by a retired New Jersey State Trooper who previously headed the State Police alcohol drug testing unit.
The municipal court entered the conditional plea. Defendant appealed to the Law Division, relying on the expert report to argue the Alcotest was invalid. The trial court reject defendant’s argument relying on an unpublished decision on a case substantially similar to defendant’s. Defendant appealed to the Appellate Division.
The Appellate Division upheld the conditional plea of the DWI, but not based on the unpublished decision. Instead, the Appellate Division found that because of defendant’s stipulations in the plea deal that the Alcotest was working properly, there was no evidence to suggest that the machine allowing a breath within the two minute “lock out” period was anything more than a slight deviation, and not a cause that would or could contaminate the first sample.
DWI in New Jersey cannot be taken lightly. They carry suspensions, fines, and cannot be expunged because they are traffic violations and not criminal acts. The Alcotest is administered at each DWI, but there is a specific procedure the police must follow before and after the Alcotest. This begins with a roadside assessment of the driver’s motor skills and speech. Then the Alcotest is conducted after a 20 minute observation period. There are several areas that the police can fail to take proper measure, and lose a DWI conviction. Make sure you hire an attorney experienced in all requirements of DWI to ensure your rights are protected. Making a conditional plea like the one above could lead you with a DWI conviction, even with an expert report stating that the Alcotest results should be thrown out.
If you have been charged with any, first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. Failing to hire a defense attorney and putting your faith in a public defender could give you adverse results.
At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us immediately. At Hark & Hark, we represent clients for any case in any town in New Jersey including Aberdeen, Allenhurst, Allentown, Asbury Park, Atlantic Highlands, Avon-by-the-Sea, Belmar, Bradley Beach, Brielle, Colts Neck, Deal, Eatontown, Englishtown, Fair Haven, Farmingdale, Freehold borough, Freehold township, Hazlet, Highlands, Holmdel, Howell, Interlaken, Keansburg, Keyport, Little Silver, Loch Arbour, Long Branch, Manalapan, Manasquan, Marlboro, Matawan, Middletown, Millstone, Monmouth Beach, Neptune, Neptune City, Ocean, Oceanport, Red Bank, Roosevelt, Rumson, Sea Bright, Sea Girt, Shrewsbury borough, Shrewsbury township, South Belmar, Spring Lake Boro, Spring Lake Heights, Tinton Falls, Union Beach, Upper Freehold, Wall, and West Long Branch.
