New Jersey DWI Attorney John Menzel

What the State Must Prove to Convict You


Prerequisites.  Almost all drunk driving charges arise from arrests which are considered warrantless seizures.  Seizures made without an arrest warrant are presumed to be unreasonable.  Thus, the State must establish that the officer had (a) a reasonable basis on which to stop you, and (b) probable cause to arrest you for drunk driving.  The State must establish reasonable basis and probable cause by a preponderance of the evidence (i.e., more likely than not).

Elements of Drunk Driving.  Once these prerequisites are established, the court can consider the elements of the offense.  To convict you of drunk driving, the State must prove beyond a reasonable doubt (the highest burden of proof in our law) that you

  • operated or intended to operate
  • an operable motor vehicle
  • while either under the influence of liquor or with an alcohol concentration of 0.08 per cent by weight of alcohol in your blood or breath.

Defenses to Drunk Driving.  Defenses to drunk driving charges focus on the elements.  If the State fails to establish the elements or if you present evidence that gives rise to a reasonable doubt about the elements, you can win and the court will find you not guilty.  Affirmative defenses are defenses that require you to prove that something.  If the court believes that certain affirmative defenses (like an overwhelming necessity to drive) exist, the court may also find you not guilty.

Elements of Breath Test Refusal.  Breath test refusal is a separate offense for which the court imposes separate punishments in addition to those for drunk driving.  To convict you of breath test refusal, the State must prove by a preponderance of the evidence (i.e., more likely than not) that the arresting officer:

  • had probable cause to believe that you were driving or in actual physical control of a motor vehicle on the public highways or quasi-public areas of this state while under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana
  • arrested you for drunk driving.
  • asked you to submit to a breath test
  • received an answer that was either negative or conditional

Defenses to Breath Test Refusal.  Affirmative defenses are defenses that require you to prove that something prevented you from submitting breath samples.  New Jersey law recognizes few such defenses to breath test refusal.  Affirmative defenses include (a) confusion about your legal obligation to submit a breath sample (not confusion caused by intoxication) arising from your misimpression of those rights or incorrect advice from the police officer, and (b) a physical inability to give sufficient breath samples due to certain medical conditions like trauma, emphysema, or asthma.


What the State Must Prove to Show

Breath Test Reliability

Breath Testers.  Breath testing is by far the most common way of testing for blood alcohol content [“BAC”].  Until 2005, with the advent of the Alcotest 7110 MK-III-C, the Breathalyzer was by far the most commonly used machine to test breath in New Jersey.  The Breathalyzer has not been used anywhere in New Jersey since 2008.

Breathalyzer.  The Breathalyzer was invented in or about 1956.  The configuration of models formerly in use dated back to 1966.  Depending on the age of the Breathalyzer, it was manufactured by either Stephenson, Inc., Smith & Wesson, or National Draeger, Inc.  There are two models of Breathalyzer — the model 900 and 900A.

Alcotest 7110 MK-III-C.  There is only one model of Alcotest used in New Jersey — the model 7110 MK-III-C manufactured by Draeger Safety, Inc., the successor to National Draeger, Inc.  Unlike the Breathalyzer, which is completely dependent on the operator to manipulate its controls and to read the breath test result, the Alcotest for the most part depends on the manipulations of a computer program that manages inputs from various hardware components, including an infrared [“IR”] detector, an electro-chemical [“EC”] fuel cell, pressure sensors, flow sensors, and temperature sensors, among others.  The reliability of this device was established as a matter of law in the New Jersey Supreme Court decision of State v. Chun, 194 N.J. 54 (2008).

Foundation.  Before a municipal court can hear what breath test results are, the State must establish certain things by a burden of proof known as “clear and convincing evidence” — i.e., evidence so clear, direct, and weighty as to cause the finder of fact to come to a conclusion about the matter is issue without hesitation.  These things, referred to as the elements of a foundation, are established via testimony and documents.  The foundational elements for introduction of breath test results are that:

  • the machine was working properly.
  • the officer who operated the machine was certified by the Attorney General to use it.
  • radio frequency interference did not affect the machine.
  • the test was given correctly, including that someone observed the breath test subject for at least 20 minutes immediately before submitting breath samples and that mouthpieces were changed between breath tests, among other things.
  • chemicals in glass ampoules used in the test were of the proper amount and mix in cases involving the Breathalyzer.

Documents You Should See Before Deciding What to Do

Drunk Driving Defendants.  If you were charged with drunk driving, you should get, at a minimum, copies of these documents from your lawyer:

  • Police copies of the Summons and Complaint
  • Drinking-Driving Report, including
  • an observations check-off sheet and
  • a narrative of investigation
  • Motor Vehicle Commission Standard Statement
  • Documents you signed, if any
  • Any other police reports

Breathalyzer Test Documents.  If your breath was tested on either a Breathalyzer 900 or 900A, you should also, at a minimum, get copies of these documents from your lawyer:

  • Alcohol Influence Report, including
  • chemical test information:
  • full identification of the machine used
  • the type of machine used
  • the machine’s manufacturer
  • the machine’s model number
  • the time of tests were given
  • test results
  • Breathalyzer Operational Checklist
  • Breath Test Instrument Inspection Certificates, which show results of periodic inspection of the machine:
  • one dated before your breath test
  • one dated after
  • others from the year before your arrest
  • one showing when this machine was placed in service
  • Breathalyzer Operator Certification Card for the officer conducting the breath tests
  • Assay report for ampoule chemicals
  • State Police certificate of analysis for breath alcohol simulator solution

Alcotest Test Documents.  If your breath was tested on an Alcotest 7110 MK-III-C, you should also, at a minimum, get copies of these documents from your lawyer:

  • Alcohol Influence Report, including
  • full identification of the machine used
  • full identification of the simulator used
  • lot number of the simulator solution used for control tests
  • time of arrest
  • the time of tests were given
  • the volume and duration of each sample you blew into the device.
  • test results
  • names of the arresting and testing officers
  • Calibration Certifications including certification, calibration, and linearity testing.
  • Solution Change Reports for each time the simulator solution was changed between certification and your breath tests.
  • Alcotest and Breathalyzer Operator Certification Cards for the officer conducting the breath tests, solution changes, and calibration checks.
  • Draeger certificates of accuracy for
  • the Alcotest used in your tests
  • simulators used in your tests and in calibration, certification, linearity and solution change testing
  • temperature probes used in certification and solution change testing
  • State Police certificate of analysis for breath alcohol simulator solution

Breath Test Refusal Defendants.  If you were charged with breath test refusal, you should get copies of these documents from your lawyer:

  • Police copies of the Summons and Complaint
  • Drinking-Driving Report, including
  • an observations check-off sheet and
  • a narrative of investigation
  • Motor Vehicle Commission Standard Statement
  • Alcohol Influence Report
  • Documents showing availability of a specific testing device
  • Operator Certification Card for the officer available for breath testing
  • Documents you signed, if any
  • Any other police reports

Additional Trial Preparation: When to Hire an Expert

Breath Test Defects.  If a defect afflicts the breath testing device or its operation, the defense may call an expert witness, often a factory trained Breathalyzer technician formerly certified by the Attorney General as a Breath Test Coordinator Instructor with the New Jersey State Police.  The New Jersey State Police opposes defense attempts to call presently certified Breath Test Coordinator Instructors as experts for the defense.

Medical Issues.  Consider hiring a medical doctor if you have a health problem that affects breath test results — e.g., diabetes, hypoglycemia, asthma, fever, ulcers, hiatal hernia, and use of certain medications–or causes you to sway, stagger, have bloodshot watery eyes and droopy lids, fumble and move your hands slowly, and show other signs that may be mistaken for intoxication — e.g., diabetes, hypoglycemia, inner ear and eye disorders, neurological deficits, and allergies.

Other Experts.  Creative lawyers often use other experts, depending on what may be at issue in a particular case.  Consider accident reconstruction experts, engineers, surveyors, mechanics, and others.

Reciprocal Discovery.  Other items helpful not only to bolster expert testimony but also to assist in a factual presentation to the court include photographs, tax maps, zoning maps, satellite images, and medical records.  If you or your lawyer want to show such items to the court, court rules generally require that the State be given notice and either given copies or a chance to inspect them.

John Menzel, J.D.

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