Articles Posted in Blood Breath Tests

New Jersey Police Agencies rely on the breathalyzer to provide the evidence of a suspected drunk driver’s blood alcohol concentration (BAC) in the vast majority of cases. However, there will be occasions when the police will seek to obtain this vital evidence by taking a sample of the defendant’s blood for testing and analysis. Typically, the extraction of a blood sample from the body of the defendant in a drunk driving case will occur in the five situations:

1) Defendant Has Been Injured: Police Blood Samples

When the police respond to the scene of a motor vehicle accident, one of their primary responsibilities is to provide immediate care and seek emergency medical treatment for those who have been injured. During the course of their investigation, the police may develop evidence that leads them to believe that one of more of the operators of the motor vehicles involved in the accident may have been under the influence of drugs or alcohol. If the level of belief rises to probable cause, the police may effect the arrest of the operator for a violation of N.J.S.A. 39:4-50(a). However, due to injuries sustained in the accident, the defendant may require immediate medical treatment at a hospital or other emergency medical facility. This fact prevents the police from having the defendant take a breath test within a reasonable period of time after operating the vehicle. Thus, when confronted with this situation, the police may request the attending medical staff to extract samples of the defendant’s blood for purposes of determining the blood alcohol concentration (BAC).

Prosecutions of DWI cases requires that the breathalyzer test be administered within a reasonable time after a defendant is stopped for drunk driving. Judge Haines discussed this issue in State v. DiFrancisco, 232 N.J. Super 317 (Law Div. 1988). “One required proof as to the proper administration of the test is that it be performed within reasonable time after the defendant has been stopped for drunk driving. The State must supply this proof by clear and convincing evidence. In this case the test was given as much as 3 hours and 50 minutes after the drunk driving occurred, unless the defendant was ‘driving’ at the time of arrest at 3:10 a.m. In either case the State was obliged to prove that the test was given within a reasonable time. This court, absent such proof, has no way of knowing what time is reasonable, a conclusion that must depend on a variety of facts, such as time and the amount of alcohol consumption. The State presented no testimony on that issue and therefore failed to carry the burden of proof, therefore making the breathalyzer test results inadmissible.”

Therefore, it appears that a reasonable time after the defendant is stopped is a totality of the circumstances analysis based on the specific facts of each case. Moreover, the State has the burden of proving that the test was given within a reasonable time.

We had a client come in recently who was charged with DWI in New Jersey. Her breathalyzer readings showed a blood alcohol content of .09 and .08 (the test is administered twice). In New Jersey, in terms of a prosecution for driving while intoxicated, the State is forced to use the lower of the two readings (in this case .08). The legal limit in New Jersey is .08 % BAC. Therefore, this client’s readings are right at the legal limit. In this case, you can retain a breathalyzer expert (usually a former State trooper) to show that the breathalyzer machines are not perfect and usually have a .01% human error in the blood alcohol readings. As a result, if we are able to show that this error exists and that the .08% readings are possibly .07% (below the legal limit), the State will be unable to prove driving while intoxicated beyond a reasonable doubt. Therefore, our client will avoid a DWI charge on her record and will avoid a minimum three month license suspension (which is required for BAC readings between .08% and .10 % in NJ).

The following are important New Jersey Supreme Court decisions concerning the admissibility of breath test results. In State v. Garthe, 145 N.J. 1 (1996), the Court held that the protocols established by the State police for testing breathalyzer machines must be designed to ensure the machine will produce reliable results, but that the adoption of those protocols is more akin to a State Police intra-agency determination rather than rulemaking. Therefore, adoption or modification of the protocols need not comply with the Administrative Procedure Act.

Furthermore, in the same court decision, the Court established that absent evidence that the test protocols established by the Division of Criminal Justice and State Police are not scientifically reliable to establish that the breathalzyer machines are in proper operating order, the State may, subject to the business records and public records exceptions to the hearsay rule, offer Breath Test Instrument Inspection Certificates as admissible evidence in DWI trials. Id. at 13-14. This remains the norm in New Jersey DWI trials as these inspection certificates are key in establishing the reliability of the breathalyzer readings.

Finally, in Romano v. Kimmelman, 96 N.J. 66 (1984), the New Jersey Supreme Court held that a breathalyzer test result is admissible in a DWI prosecution only if it is first established that “the breathalyzer instrument is in proper working order, is administered by a qualified operator and is used in accordance with accepted procedures.” The State bears the responsibility for establishing all conditions of admissibility by clear and convincing evidence.

The Supreme Court’s recent decision in State v. Spell appears to have created bad law for the defense.  The issue in Spell was whether or not a police officer had to read the second paragraph of the refusal form in all instances.  The Appellate Division concluded that this was always a requirement even when an accused unequivocally refuses to provide a breath test.  The Supreme Court disagreed, concluding that the second and final warning need not be read where an accused  “either conditionally consents or ambiguously declines to provide a breath sample.”

I candidly see little logic to this ruling.  Why the Court sees no need to impose the minimum requirement of taking a minute to read a final warning is beyond me.  It certainly seems that this is only reasonable given the mandatory penalties associated with a refusal. 

Our law firm recently represented a client charged with driving while intoxicated (DWI) in Holmdel, New Jersey. My client was leaving a Brad Paisley concert at the PNC Bank Arts Center when she was stopped at a “seatbelt” check by a law enforcement officer. She was arrested for drunk driving and blew a .09% BAC on the Alcotest machine.

In reviewing the discovery evidence and the police report, it became clear that the probable cause for the stop was not sound. DWI checkpoints are constitutional in New Jersey if certain requirements are met. The controlling case in New Jersey is State v. Moskal, 246 N.J. Super 12 (1991) which details how the required procedures must operate if the roadblock is to be valid. In Moskal, the court concluded that a sobriety checkpoint (i.e. a roadblock) is valid provided the location of the checkpoint is appropriate based on historical arrest rates at the location, public safety and awareness would be foster by the checkpoint, there is participation in command and supervision, and notice of the checkpoint is published to provide motorist with notice.

In this case, the police were conducting a DWI checkpoint without the proper protocols being met. They did not publicize the check point or have the proper command and supervision at the location. Instead, they called the stop a “seat belt” check but they were stopping every vehicle, not only those vehicles in which the driver was not wearing a seat belt.

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)