DWI-Twenty Minute DWI Defense Altered
Previously, in a DWI case involving the Alcotest machine, the police officer-Alcotest operator had to observe the arrestee for twenty minutes prior to administering the DWI breath test to the accused. The reason was to make sure that the arrestee didn't burp up any mouth alcohol or have any foreign substances in their mouth which would falsely elevate their DWI reading and lead to a false conviction.
Under State v. Biscardi, a new Appellate Division case, the court ruled consistent with a more recent Court decision, that the Prosecutor could use any qualified witness to testify that the twenty minute observation period of the accused had been met prior to administering the Aloctest.
This ruling is in direct contradiction to the seminal ruling in State v. Chun, which specifically held that the "operator" had to be the individual who observed the arrestee for twenty minutes prior to the Alcotest being administered. However, as long as the integrity of the readings from the Alcotest can be validated and their integrity ensured, I do not anticipate the Supreme Court adhering to the present "operator" only requirement, when a Prosecutor can demonstrate that the observer was a trained officer who watched the accused for twenty minutes.
