Questionable Twenty-Minute Observation Period Leads to Favorable DWI Result

December 19, 2012
The attorneys at the Law Office of Randolph H. Wolf recently represented a client charged with driving under the influence of alcohol in violation of N.J.S.A. 39:4-50; criminal mischief in violation of N.J.S.A.2C:17-3; and various traffic offenses, including reckless driving in violation of N.J.S.A. 39: 4-96, failure to keep right in violation of N.J.S.A. 39:4-82, and failure to observe traffic signs in violation of N.J.S.A. 39:4-81.

The client’s Blood Alcohol Content (“BAC”) was 0.16%.  As his BAC was above 0.10%, the client was subject to a mandatory seven month to one year loss of his driver’s license as well as the installation of an ignition interlock device during the period of suspension and for six months to one year thereafter, among other fines and penalties.

In order to ensure the reliability of the breath test results, New Jersey law requires test operators to conduct a continuous, direct, and uninterrupted twenty-minute observation period prior to administering the test.  This requirement is a procedural safeguard, which ensures that there is no raw alcohol contained in the mouth cavity from recent consumption, foreign substances placed in the oral cavity, regurgitation, belching, etc., prior to breath test results so as to not erroneously effect the test results.  Pursuant to the State v. Chun decision by the New Jersey Supreme Court, “If the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person’s mouth, the operator is required to begin counting the twenty-minute period anew.”

According to the police reports, our client had vomitted in the police cruiser in route to the police station.  The officer conducting the breath test at the police station indicated that during the observation period, he “maintained a constant uninterrupted visual of [the client] who did not belch, vomit, or place any object in his mouth.”  A report prepared by our expert, however, advised that in the event previous regurgitation occurs, it is recommended that the suspect rinse their mouth so as to eliminate the probability that no residue/food particles remain in the oral cavity prior to breath testing.  There was, however, no indication that any rinsing or checking of the oral cavity had taken place.  As such, our expert’s report indicated that the breath tests were suspect and may have been procedurally improper.

Based on this information, we were able to work out a favorable resolution for our client.   The State agreed to lower the DWI penalties to those penalties the client would have faced had his BAC been between 0.08% and 0.10%.  This reduced the client’s period of suspension from a period of seven months to one year to a period of only three months.  Further, the client was not required to install an expensive ignition interlock device on his vehicle.  All other traffic violations, which together totaled nine points, were dismissed.

With regard to the criminal mischief charge, the complaint alleged that the client committed criminal mischief by damaging tangible property belonging to the Borough of Carteret by spitting in the back seat of a police patrol unit after specifically being told not to by the arresting officer.  For this offense, which was graded as a disorderly persons offense (or misdemeanor), the client was facing up to six months in jail and up to a $1,000.00 fine, among other penalties.  Further, if convicted, the client would have a criminal record.  The attorneys at the Law Office of Randolph H. Wolf, however, were able to get the criminal charge reduced to a civil, municipal ordinance violation, with a fine of only $250.00.  Municipal ordinance violations do not constitute criminal offenses and are eligible for expungement after only two years.

If you are in need of representation, contact the experienced criminal defense attorneys at the Law Office of Randolph H. Wolf today.

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