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.
Continue Reading...12/14/09--In State v. Tsetsekas, the Appellate Court held that a DWI trial delay of 344 days constituted a failure to provide a speedy trial to the defendant and warranted a dismissal of the DWI charge. The speedy trial violation resulted because of numerous and unnecessary Court appearances by defense counsel--partially caused by the town prosecutor being unprepared several times and numerous failures to appear by the State Police witnesses. In this DWI case, the defense appeared seven to ten times at court and the DWI case was continually delayed because evidence wasn't turned over to the defendant or the State Police failed to appear in Court.
This case is a refreshing change for DWI attorneys such as myself who are continuously pressed by Courts to resolve our DWI cases in the sixty days preferenced by the Administrative Office of the Courts. It should be noted that it is still a tough hill to climb to succeed in a speedy trial context, but it can be done where the prior appearances and reasons for the Court postponements are documented.
One defense that should be explored by every attorney on behalf of their client is the "twenty minute defense." In the seminal DWI case, State v. Chun, dealing with the new Alcotest machine for breath testing, the Supreme Court stated that the person who administers the breath test in your DWI case must observe you for twenty minutes prior to administering the test. This is to ensure that you have not hiccuped or regurgitated residual alcohol into your mouth; which could skew the breath results.
While I personally believe that this twenty minute observation period is required by State v. Chun, trial court judges and appellate courts have interpreted the law differently and have inexplicably ignored the precedent of our highest Court. However, one recent appeal, titled State v. Nucifora, was decided in Camden County back on December 30, 2008. This is an unpublished letter opinion which stands for the premise that the Alcotest operator must personally observe the accused for twenty minutes before administering the test.
A New Jersey Driving While Intoxicated (DWI) charge has serious consequences for a person who has pled guilty or been found guilty of DWI. These consequences can result in fines, surcharges, community service, loss of your driving privileges and incarceration. If you have been charged with a DWI, you should consult with an attorney to be educated about your rights and defenses. There are many ways to successfully defend a DWI (N.J.S.A. 39:4-50) charge in New Jersey. The following are examples of possible defenses to your DWI charge.
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