Thursday, August 11, 2016
DWI defenses in NJ 20-minute issue
DWI defenses in NJ
The Supreme Court of New Jersey directed that breath testing take place after a period of 20 minutes of observation. This was the same 20-minute period that the Alcotest device was designed to lock out to prevent the possibility of contamination of breath test sample with mouth alcohol.
In the transcript from the state's summation, represented in State v. Chun, Supreme Court of New Jersey, Docket No. 58, 879. The Deputy Attorney General represents to the court that the State feels that a 20 minutes observation is one of the most important safeguards for the Alcotest 7110 MKIII-C. The State has the obligation to prove every element of this case by proof beyond a reasonable doubt.
More specifically with regard to breath testing, the Supreme Court of our State in Romano v. Kimmelman, 96 N.J. 66 (1984) has directed that the State be required to establish proper operation of the breath test device by clear and convincing evidence. Consequently, the breath test results should not be allowed into evidence to establish a per se violation unless the state proves a 20 minute continuous observation.
If the Alcotest results are thrown out, the defendant can plead to a dwi with only a three-month suspension and no interlock.
The defense attorney can also file a motion for additional Alcotest discovery, such as:
OPRA- foundational documents and Alcotest
Regarding Alcotest machine ARWD-0107
(1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator’s  credentials of the officer who performed that change;
(2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report;
(3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator;
(4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe;
(5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records (including both Parts I and II are offered));
(6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests);
(7) Certificate of Analysis 0.10 Percent Solution (used in Calibration-Control);
(8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity)
(9) Calibrating Unit, New Standard Solution Report, following Calibration;
(10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration-Linearity tests; (11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and
12 (12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability.
13 Operator manual and instruction manual for Alcotest® machine ARWD-0107
14 Verification of the date in which this Alcotest® machine ARWD-0107 was first placed into service.
15 Date of fuel cell (EC) replacement, if any.
16 Complete service and repair record from the Department and Dräger for this Alcotest® instrument
17 Service, Repair and replacement records for Alcotest machine ARWD-0107
1. All alcohol influence report test data for air blank, simulator, subject, linearity, and any and all other tests conducted by the National Draeger Alcotest Model 7110 MKIII-C ["7110"] relevant to __ breath tests both printed and/or stored in the instruments random access memory and/or downloaded to read only memory.
2. Any breath testing logs maintained by the station or department in connection with the 7110 used to test __ breath.
3. State and manufacturer's assay, analysis, quality assurance, or similar documents and documents on each and every analysis, standard, and control run in the series of runs involving analysis of the following simulator solutions, including chemist's notes, gas chromatograph ("GC"] printouts, GC service records (if any), quality control manual, and testing procedures and custody documents for the simulator solutions:
(i) 0.040 simulator solution let used in 7110 Linearity Tests with the model CU-34 simulator used in control and calibration checks of the 7110 both before and after __ breath tests
(ii) 0.080 simulator solution lot used in 7110 Linearity Tests with the model CU-34 simulator used in control and calibration checks of the 7110 both before and after __ breath tests
(iii) 0.160 simulator solution lot used in 7110- Linearity Tests with the model CU-34 simulator used in control and calibration checks of the 7110 both before and after __ breath tests
(iv) 0.100 simulator solution lot used in breath tests with the model CU-34 simulator used in __ breath tests
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Avenue, Edison NJ 08817