DWI defense
20-minute issue
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.
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.
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.
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.
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:
for additional Alcotest discovery, such as:
OPRA- foundational documents
and Alcotest
and Alcotest
Regarding Alcotest machine
ARWD-0107
ARWD-0107
(1) Calibrating Unit, New Standard Solution
Report, most recent change, and the operator’s [109] credentials of the officer
who performed that change;
Report, most recent change, and the operator’s [109] credentials of the officer
who performed that change;
(2) Certificate of Analysis 0.10 Percent
Solution used in New Solution Report;
Solution used in New Solution Report;
(3) Draeger Safety
Certificate of Accuracy Alcotest CU34 Simulator;
Certificate of Accuracy Alcotest CU34 Simulator;
(4) Draeger Safety Certificate of Accuracy
Alcotest 7110 Temperature Probe;
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));
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);
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);
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)
0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity)
(9) Calibrating Unit, New
Standard Solution Report, following Calibration;
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
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.
Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST
traceability.
13 Operator manual and
instruction manual for Alcotest® machine ARWD-0107
instruction manual for Alcotest® machine ARWD-0107
14 Verification of the date
in which this Alcotest® machine ARWD-0107 was first placed into service.
in which this Alcotest® machine ARWD-0107 was first placed into service.
15 Date of fuel cell (EC)
replacement, if any.
replacement, if any.
16 Complete service and
repair record from the Department and Dräger for this Alcotest® instrument
repair record from the Department and Dräger for this Alcotest® instrument
17 Service, Repair and
replacement records for Alcotest machine ARWD-0107
replacement records for Alcotest machine ARWD-0107
18
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.
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.
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:
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
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
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
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
lot used in breath tests with the model CU-34 simulator used in __ breath tests
KENNETH VERCAMMEN &
ASSOCIATES, PC
ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Avenue, Edison
NJ 08817
NJ 08817
732-572-0500
