What's Going on Here, Breathalyzer, Beer, Car Keys NJ DUI Laws

What’s going on here!

Recently I have had many “what’s going on here” moments. If you follow the news, you know what I mean. But some of those thoughts come to mind with regard to New Jersey Municipal Courts.

Article by Peter H. Lederman, Esq.

Published in the New Jersey Law Journal

When both of my kids graduated college and were just starting their jobs, my wife and I offered temporary food and shelter so they could save their meager earnings and then move to the Big City with something in the bank. Obviously, this arrangement was not ideal as commuting on NJ Transit took a chunk out of the NYC social life to which they aspired. As a result, there were stressful moments, such as the time I was slightly delayed with pick up at the train station. An angry text message followed with the rhetorical inquiry “what’s going on here!” It was memorable enough to save the message for the right time in the future.

Recently I have had many “what’s going on here” moments. If you follow the news, you know what I mean. But some of those thoughts come to mind with regard to New Jersey Municipal Courts.

The first thing that makes me wonder is the Tiger Woods case in Florida. That case creates a striking comparison to what’s going on (or not going on, for that matter) in New Jersey. We all recall the recent “breaking news” about his arrest for Driving While Intoxicated in Florida. More than the news itself, the Mobile Video Recording of Tiger, definitely not on his game, were stark and vivid images of one who had clearly consumed the wrong substances before operating his motor vehicle.

As written about earlier, Tiger’s friends circled the wagons and issued statements of support in his dark hour. It was great to hear this when Tiger was really hurting. The question though, was what was going to happen when he had to deal with the law.

As jurisdictions go, Florida can be a tough place. Forget “Stand Your Ground” laws and laws that make firearms acquisition easy. Keep in mind, they also execute people for capital crimes, something we moved on from, many years ago!

In this “Law and Order” environment, Tiger surely was in for a world of hurt, when it came time to face the music. But, that’s not what happened! Florida, for all of its “tough” criminal laws and penalties, allows first DWI offenders a second chance. In what is essentially a diversionary program, certain offenders, such as Tiger, can enter the program by pleading to a lesser charge, reckless driving, then staying out of trouble and participating in substance abuse counseling. At the same time, defendants must abstain from substance use, pay fines and otherwise perform in accordance with program guidelines. The end result is that the DWI charge will be dismissed upon successful completion of program requirements. And so it was for Tiger.

Now, we don’t allow many people to purchase, no less carry handguns in New Jersey. There is no “Stand Your Ground” law that allows you to essentially shoot first and ask questions later in our State, nor do we exercise capital punishment. Yet, in our State, where we look at criminal law perhaps in a less punitive manner, there is no diversionary program for first DWI offenders. What’s going on here!
My second problem deals with pending proceedings involving the Alcotest breath test device. It seems that our State has had a difficult time creating and administering a reliable, credible and transparent program to determine Blood Alcohol Content when drivers are arrested for Driving While Intoxicated. Such a program is crucial due to the fact that determination of Blood Alcohol Content of .08%BAC or more, establishes intoxication, per se, that is, by itself. Stated otherwise, a breath test device can establish a major element in a DWI prosecution.

The Breathalyzer was used in New Jersey for decades as the sole device to measure alcohol in the defendant’s body for evidential purposes. So dominant was its use that other devices, with completely different technology, continue to be commonly referred to as “Breathalyzers”! The problem for us in New Jersey, however, was that when the technology advances and new devices became available to replace the old “dial-a-drunk”, New Jersey stubbornly adhered to its use. In the end, we were one of two states in the entire country that relied on its antiquated technology.

It was ultimately replaced by the Alcotest 7110 MKIII-C, which is now in use across the State. This only occurred though, after an exhaustive hearing was conducted by a Special Master appointed by the Supreme Court. The Special Master’s voluminous report of his findings was then submitted to the Supreme Court, which after oral argument and a remand to the Special Master for additional findings, resulted in a hundred plus page opinion finding that the Alcotest to be acceptable for evidential breath test purposes in New Jersey, subject to the testing protocol adopted in the Chun opinion.

However, in the wake of more “breaking news”, that a Breath Test Coordinator from the Alcohol Drug Test Unit of the New Jersey State Police disregarded mandated procedures required in Chun to shortcut his periodic inspection of the device, another Special Master has been appointed to determine if the procedures he skipped, were really necessary! Really? Is the Court even going to consider changing quality control procedures just because a Trooper chose not to follow them? Oh yes, and the State told the Supreme Court it was replacing the Alcotest by the end of 2016 because of the State’s inability to comply with other Chun directives! As of the Fall of 2017, this still has not happened.

We don’t need any more “breaking news”! Diversionary programs make sense. If a State like Florida can do it, so can we. And, no more accommodating the State every time its breath test program misses the mark. Make the program work or get the new machines it told the Court it was getting. My head hurts! What’s going on here!!!

Reprinted with permission from the October 2017 issue of the New Jersey Law Journal. © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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