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Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.

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NJ DWI defendants are entitled to their breath reading “upon request”
Two weeks ago, the New Jersey Appellate Division, in State v. Sorensen, resolved another New Jersey DWI issue in favor of the State. When a defendant breaths into the Alcotest to supply a breath sample, the machine generates a report known as the alcohol influence report or “AIR.”
Our Supreme Court’s comment that the “operator must retain a copy of the AIR and give a copy to the arrestee” was similarly part of a technical discussion, not a legal discussion. The comment came in the section of the Court’s opinion addressing “How the Alcotest Works.” . The Court made the comment as part of its “description of the manner in which the device operates in practice,”discussing “[o]ne of the claimed advantages of the Alcotest, as compared to the breathalyzer, [namely] that it is not operator-dependent.”The Appellate Court’s decision further noted that no such requirement is mentioned in the Chun Court’s extensive order specifying conditions under which the AIR is admissible as evidence of a defendant’s BAC. The Appellate Division also held that the Chun Court’s order did not dictate when the AIR had to be produced. The Court’s decision specifically acknowledged the countervailing command of the Legislature. N.J.S.A. 39:4-50.2 provides that the AIR be provided to the tested person “upon request.” Thus, the court held that the Supreme Court’s comment in Chun did not reject N.J.S.A. 39:4-50.2(b)’s standard for when a police officer is required to provide a copy of the results of a breath test. Finally, noting that the Chun Court did not address whether disclosure of the AIR on request rather than in the police station would require suppression, the Appellate Court held that suppression of the AIR is not an appropriate remedy in the absence of prejudice. The Court reasoned that,
Other than advising a defendant of the rights expressly set forth in N.J.S.A. 39:4-50.2(b) and (c), “the statute sets forth no other affirmative duties on the part of the police.”The court also reasoned that the “significant costs of suppressing valid BAC results, the limited benefits of the new obligation defendant seeks to impose, and her failure to show prejudice” made suppression “unwarranted.” 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.

Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.
