There are two basic elements to every DWI case, intoxication and operation.
by Peter Lederman, Esq.
Obviously, intoxication can be demonstrated by testimony describing a driver to be in a condition where the ability to operate a motor vehicle has been substantially diminished to the point where it can not be operated safely. However, the State of New Jersey can also prove intoxication by showing that a driver’s blood alcohol content was .08% or higher. Breath test devices such as the Alcotest 7110 MK III-C, are used for this purpose. Because of defects in the machine, additional procedures have been established by the New Jersey Supreme Court. Compliance with these procedures are essential for breath test results to be considered by the court as evidence against a driver.
One of these issues involves distinguishing alcohol residue in the mouth from the alcohol ingested into the body which affects the ability to operate a car. This is a problem because alcohol can get into the mouth without alcohol consumption and still be measured by a breath test machine. Burping, belching, hiccupping can cause alcohol in the stomach to return to the mouth. Also, many products such as gum, candy, cough drops and medications include alcohol as an ingredient.
The Alcotest device was designed to be able to distinguish mouth alcohol from deep lung alcohol. However, this function referred to as a slope detector, did not operate as designed. Consequently, the Court adopted a requirement that every breath test include a twenty minute period of observation, during which the driver has been observed not to have any foreign substance in their mouth. Failure to conduct this twenty minutes of observation, however, will prevent breath tests from achieving the reliability needed to be considered as evidence against a driver in a DWI prosecution. The State then would be left to show that observations of the driver’s conduct demonstrated intoxication, to prove their case.
It would seem to be easy for police to conduct this twenty-minute observation in a proper manner, preventing false breath test readings. However, in many cases, this is not done. In-station video is invaluable in making this determination and defending a driver.