The past several weeks we have detailed new Court decisions which have made defending driving while intoxicated (“DWI”) in New Jersey more difficult. The Court has eliminated the two-minute lockout defense and allowed the state to use a substitute temperature probe. Before these cases were decided, our firm had regular success in using these defenses in having charges dismissed or reduced. While these defenses are no longer available to defendants in New Jersey there are many viable DWI defenses that remain.
All is not lost! One of the most common defenses to a driving while intoxicated (DWI) charge is a law enforcements failure to conduct a continuous 20 minute observation of the defendant prior to administering the Alcotest. The Chun Court recognized that the prosecution is required to establish, as part of its case, that the defendant did not ingest, regurgitate or place anything in his or her mouth that may compromise the reliability of the test results for a period of at least twenty minutes prior to the administration of the Alcotest.
The Alcotest software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. However, the 20 minute observation usually starts sometime after the arrest. Knowing when the observation began and ended can be critical to a successful defense.
The states observation must be continuous. The lack of continuity of the police observation was the key fact in the inadmissibility of the Alcotest reading in State v Filson. If there is any break or interruption in the observation of the defendant the 20 minute observation must be restarted for the Alcotest reading to be admissible. In addition, if the accused swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person’s mouth, the operator is required to begin counting the twenty-minute period anew.
Is the State’s burden to show by clear and convincing evidence that the defendant was continuously observed by a competent witness for at least 20 minutes and the defendant did not ingest regurgitate or place anything in his or her mouth during that period of time.
As part our DUI defense we analyze the timelines set forth by the prosecution and contained in the discovery. Often times we will review the police report, police dispatch records, arrest video, and police station video to determine if the 20 minute observation requirement can be successfully challenged. If the state cannot prove that they complied with the 20 minute continuous observation requirement then the Alcotest test readings are inadmissible at the time of trial.
If you or someone you know is facing a charge of driving under the influence (DUI), contact the DWI defense lawyers at DeMichele & DeMichele. You can also reach us by telephone (856) 546-1350. Our lawyers are former municipal prosecutors and public defenders who are skilled advocates who are ready to challenge the state and protect your rights.