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Gregory P. DeMichele is a seasoned litigator, devoting a substantial part of his practice to municipal court, family law and personal injury matters.

Latest posts by Greg DeMichele (see all)
- How to Properly Cancel a Real Estate Contract During the Three Day Attorney Review Period - December 9, 2015
- Court Expands Police Authority to Conduct Warrantless Searches of Your Car - November 10, 2015
- DUI Dismissed in Bellmawr Township - January 26, 2015
NJ DWI Law Survives Constitutional Challenge

“Imagine that a defendant contends that his BAC results are unreliable because the police allegedly deviated from the procedures mandated by Chun. More specifically, suppose that he maintains that the police failed to observe him for the required twenty minutes before the Alcotest was administered. See Chun, supra, 194 N.J. at 79. According to that defendant, he vomited or put something in his mouth while he was out of the police officers’ view a few minutes before they tested his breath, thereby confounding the BAC reading. Assume further that, before trial, the hypothetical defendant moves to suppress the BAC readings. Suppose that the judge hears testimony at the suppression hearing from one of the police officers, who asserts that he watched defendant continuously before the test was administered and that defendant did not vomit or put anything in his mouth during the pre-test period. Based on the trial judge’s preliminary impressions of the officer’s credibility at the suppression hearing, let us assume that she is satisfied, to a clear-and-convincing degree, that the officer is being truthful. But the case is not necessarily over. For instance, after the State rests at trial, the defendant might call other witnesses who were also in the police station at the relevant time. Suppose those defense witnesses testify that they saw the officers leave the room during the twenty-minute pre-test interval, while the defendant vomited or placed something in his mouth. Or perhaps the defendant himself takes the stand and credibly insists that he was not continuously observed by the police for the required twenty minutes before the testing. Or perhaps defendant presents at trial an expert witness, who persuasively explains how the police deviated from the protocol required by Chun. In this hypothetical situation, it is conceivable that the trial judge might conclude, upon further reflection in light of the evidence as a whole, that the defendant’s .08 percent BAC level was not sufficiently proven by the State beyond a reasonable doubt. The judge’s earlier decision to admit the BAC proof a ruling that is interlocutory in nature and surely can be reconsidered does not prevent the court from doubting the strength of that admitted evidence at the end of the case. In fact, the court can even reconsider its previous decision to admit the evidence, if subsequent developments support such reconsideration.”The Court further stated that it’s “conceptual point is simple and unassailable: the court’s threshold decision to admit Alcotest results by clear-and-convincing evidence does not always dictate how the court ultimately will regard that same proof at the end of trial, when a more rigorous standard of persuasion applies.” For the above reasons, reasons the Court ruled that there were no constitutional flaw in the evidential aspects that govern per se DWI cases prosecuted in our State. Nevertheless, this important case shows the importance of hiring a skilled DWI defense attorney. There are still many valid defenses to a NJ DWI. If you or a loved one needs strong representation in a municipal court in New Jersey, contact the DWI defense lawyers at DeMichele & DeMichele today. We are here to defend the charges against you. Contact us now for your confidential and free initial consultation. You can also reach us by telephone (856) 546-1350. Don’t just plead guilty and risk your driving privilege or driving record.
The following two tabs change content below.

Gregory P. DeMichele is a seasoned litigator, devoting a substantial part of his practice to municipal court, family law and personal injury matters.

Latest posts by Greg DeMichele (see all)
- How to Properly Cancel a Real Estate Contract During the Three Day Attorney Review Period - December 9, 2015
- Court Expands Police Authority to Conduct Warrantless Searches of Your Car - November 10, 2015
- DUI Dismissed in Bellmawr Township - January 26, 2015