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Article provided by James M. Porfido, Attorney at Law

Penalties for DWI in NJ

Under New Jersey law, first-time DWI offenders can face up to a seven month license suspension and over $1,000 in fines and fees. If it’s not your first conviction, and it’s your second, you will lose driving privileges for 2 years and owe thousands of dollars. Additionally, for a third offense, you could be incarcerated for six months and lose your license for 10 years.

Those convicted of driving under the influence in New Jersey for subsequent offenses could face another penalty — the ignition interlocking device. A recent poll on AAA Mid-Atlantic’s Web site asked visitors whether first-time DWI convictions should mandate installation of such a device. 61 percent of visitors said yes, while 85 percent agreed that the interlocking device should be used following subsequent offenses.

The ignition interlocking device is essentially an alcotest, which blocks your ability to start the car until you test yourself. If your blood alcohol level (BAC) is too high, your car will not start.

The law in New Jersey currently allows judges to make the decision of whether or not to impose this penalty, though, looking at AAA’s poll, it seems as if popular opinion may be against the accused.

Indeed, New Jersey drivers charged with a DWI offense face stiff penalties.

Use of the Alcotest Device in DWI Cases

It’s worth taking a look at the current technology being used to test for BAC in the first place. Earlier this year, the New Jersey Supreme Court ordered Draeger, an alcotest manufacturer, to reveal the code its products use to determine BAC so that its effectiveness could be reviewed.

Two reviews were conducted — both found the alcotest software to be below quality standards and potentially unreliable. Since alcotests do not actually involve a blood test (the most accurate method to determine BAC) they must rely on this software to accurately analyze the particles present in a suspected offender’s breath. Poor coding and faulty software could contribute to a higher reading.

It’s also possible to register fairly high on an alcotest after participating in completely non-alcoholic activities — such as painting. By misreading certain elements as if they were alcohol content, alcotests may add to a higher BAC content reading. Thus, it is important for officers to comply with a mandatory 20 minute observation to confirm deprivation of any foreign substances in the mouth. Any regurgitation or belching would start the 20 minutes anew.

A driver pulled over for suspected DWI faces the possibility of an inaccurately high reading — however, under New Jersey law, failure to comply with testing constitutes a refusal charged with a separate 7 month loss of license for a first offense for DWI.

Officers may also administer alchotests at the station. These are often more accurate, but still fall short of actual blood tests. In all cases, if an officer is not properly trained on the device, or if the device has not been successfully recalibrated with all verifiable documents and certifications, mistakes can be made.

The possibility of device miscalculations and human error are leading many accused of DWI offenses to contest their cases in court. However, despite problems, it’s unlikely that alcotests will be replaced anytime soon.

Developments in New Jersey Case Law

Alcotest usage in DWI cases have been a topic of interest in New Jersey case law in recent years, some interesting developments include:

  • A New Jersey appeals court says that a DWI defense lawyer is entitled in discovery to the raw data stored on the Alcotest, the state’s new blood-alcohol-testing device.
  • The court, in State v Chun, held that the State is required to prove that the “20 minute observation period by the operator” is attributed to the operators’ personal observations only.
  • Appellate Division Judge Edith Payne reversed an Atlantic County trial judge’s order that denied access to the data in State v. Aaron Reardon (A-5683-08).
  • Appellate Division Judge Edith Payne’s order granted leave to appeal, which cited an April 29, 2008, memo to municipal prosecutors from state Division of Criminal Justice Director Gregory Paw that authorized the release of stored Alcotest data in discovery.
  • Defense lawyers began seeking the raw Alcotest data in discovery in light of the state Supreme Court’s requirement in State v. Chun, 194 N.J. 54 (2008), that Alcotest raw data be made publicly available, with redaction of names and other personal information.
  • On Feb. 3, Municipal Judge Robert Switzer of Hamilton Township denied motions for the raw data in behalf of three defendants: Aaron Reardon, Howard Bates and Stacey Reese.
  • Burlington County Assignment Judge Ronald Bookbinder ordered disclosure of the raw Alcotest data on April 14 in State v. Ischinger. Similar rulings were issued by Morris County Superior Court Judge Thomas Manahan on March 23 in State v. Hollander, Somerset County Superior Court Judge Robert Reed in State v. Kim on April 14, and Middlesex County Judge Dennis Nieves on State v. Haigh on April 26.

Alcotest usage in DWI cases is a matter of ongoing debate in New Jersey. Therefore, if you feel that you’ve been wrongfully accused of a DWI offense, it is important to seek the counsel of an attorney with defense experience in DWI/DWI cases.

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