Last week we discussed the impact of the Appellate Court’s decision in Sate v Holland. This week it just got more difficult for attorneys to defend clients charged with driving while intoxicated (DWI). In State v. Chun, the New Jersey Supreme Court thoroughly addresses the scientific reliability of the Alcotest and adopted certain standards and procedures that must be followed by police and prosecutors before the Alcotest report can be admitted into evidence.
In order for the result of the Alcotest to be valid and admitted into evidence at trial, the operator of the Alcotest had to take two breath samples from the Defendant and the samples were required to taken at least two minutes apart. The Special Master’s Report, relied upon by the Chun Court, discussed the possibility of contamination from one sample to the next, whenever the second sample was taken too soon. Consequently, the second sample was required to be taken at least two minutes after the first sample.
In describing the breath test administration process, the Supreme Court noted that “after a two minute lockout period during which the device will not submit another test, the instrument prompted operator to read the instructions again to the arrestee and collect a second breath sample. Chun at 81. Witnesses before the special master testified that the two minute lockout period was necessary to prevent residual alcohol from one sample contaminating the second sample.”
However, on January 9, 2012, the Appellate Court in the unpublished decision, State v. Suvasish Mukherjee held that a two minute lockout period between breath samples is no longer required. In that case, the Defendant’s first breath ample was taken at 4:42 a.m. and the second sample was taken at 4:43 a.m. The states expert testified that the Alcotest recalibrated automatically during the lockout period during the first and second sample even though two minutes had not elapsed. The state’s expert also testified that the Alcotest would not be able to get a reading for the second breath sample unless the machine had already recalibrated, thereby negating the need for two minutes between breath samples. It should be noted that the Defendant did not produce an expert witness to counter the testimony of the State’s expert.
The Appellate Court’s ruling State v. Suvasish Mukherjee seemingly strikes down what was once a viable defense for New Jersey Defendants charged with driving while intoxicated. Despite this ruling there are many defenses available to those charged with Driving under the influence (DUI) in New Jersey. If you or someone you know is facing a charge of driving while intoxicated, contact the DWI defense lawyers at DeMichele & DeMichele. You can also reach us by telephone (856) 546-1350.