New Jersey Criminal and DWI Lawyer & Attorney : John Marshall Law Firm : Drunk Driving, DUI : Monmouth County, Middlsex County, Union County, New Jersey

The breathalyzer fulfills a legislative policy and intent to provide a reliable and fair measure of alcohol in the brain. Accordingly, breathalyzer results can be used in prosecution of a per se offense of drunk driving. Moreover, the reliability of the breathalyzer is subject to judicial notice in drunk driving prosecutions. State v. Downie, 117 N.J. 450 (1990). Judicial notice means that the breathalyzer has been accepted by the courts as a reliable indicator of blood alcohol levels and therefore requires no outside proof.

In establishing the conditions of admissibility of the results of a breathalyzer reading, the responsibility for producing sufficient proof is allocated to the State and the burden of proof is by clear and convincing evidence. Romano v. Kimmelman, 96 N.J. 66 (1984)

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A recent article in the New Jersey Law Journal (dated November 19, 2007) was titled "Alcotest Scientifically Reliable, Says Special Master After Second Review". This ruling could have a significant impact on DWI Litigation in New Jersey. A New Jersey Supreme Court fact finder considered software tests and testimony and found that the Alcotest 7110 is scientifically reliable enought to put into use. In a report, Special Master Michael Patrick King said "the Alcotest is scientifically reliable, both as to software and hardware, in reporting alcohol breath testing results for evidentiary purposes." This report will be subject to oral argument before the New Jersey Supreme Court on January 7th in State v. Chun, the case that will determine the admissibility of Alcotest readings in drinking and driving cases. The Alcotest has been in use in 17 counties since early last year, though the Court has stayed the sentencing for these convictions based on Alcotest results. King reasserted his conclusion that the Alcotest is much more reliable than the Breathalyzer test in use since the 1950s. "The Alcotest essentially functions independently of operator influence, unlike the breathalyzer, which is very dependent on the operator and produces no objective and permanent record of test results. The Alcotest is also much more precise."

The next step will be oral argument on January 7th in State v. Chun and we will see how the DWI landscape in New Jersey changes as a result of this upcoming New Jersey Supreme Court decision.

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Here is some important precedent governing Blood & Breath test refusal in New Jersey:

State v. Cummings, 184 N.J. 84 (2005)

The Supreme Court of New Jersey held that the elements of refusal must be established beyond a reasonable doubt.

State v. Bernhardt, 245 N.J. Super 210(App. Div. 1992)

This case sets forth the six elements necessary to establish refusal. The court also held that once a defendant refuses to take a breathalyzer test he cannot thereafter “cure” the refusal by agreeing to take the test.

State v. Carrado, 184 N.J. Super 561(App. Div. 1982)

This case held that a request requires a simple “yes” or “no” and setting is not one for explanation, negotiation, or debate.

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