We recently commented that these are uncertain times in DWI prosecutions. Over the past month or so, greater uncertainty has arisen involving one of the most critical issues in DWI cases, that being the scientific reliability of the devise the State of New Jersey has implemented for breath testing after arrest, to determine the Blood Alcohol Content of drivers charged with DWI. In New Jersey, intoxication can be determined by a breath test where a driver’s Blood Alcohol Content is determined to be .08%BAC or higher. Results can also determine the severity of the sentence and otherwise affect plea negotiations.
This problem and uncertainty results from the implementation of a new breath test device, the Alcotest 9510, before that device was determined to be scientifically reliable. In simple terms, before the results of a breath test can be used against a driver, the Court must be convinced that the device actually works.
To make this determination, the Supreme Court of New Jersey set in motion a procedure where the State, a defense attorney and other interested groups (such as the New Jersey Public Defenders Office, the New Jersey State Bar Association and the National College for DWI Defense) would argue whether the device was sufficiently reliable for use in DWI cases.
Unfortunately, this process has come to an end before the first witness was called. This was because of the Defendant’s inability to access sufficient financial resources to retain experts who it argued, would testify as to deficiencies in the new breath device. In essence, he argued that he could not (and for that matter, should not have to) match the State’s unlimited resources in providing expert testimony. When asked to provide funds for this purpose, the Supreme Court declined on several occasions. Consequently, he and his client withdrew from the case, leaving no Defendant to participate in the hearing. With no Defendant left to challenge the reliability of the new device, the Supreme Court dismissed the challenge.
Some efforts have been made to revive the challenge so that the process can proceed to a conclusion. So far though, these efforts have not succeeded. Consequently, there is no path to resolution at this time.
Due to these circumstances, New Jersey Municipal Courts are faced with the quandary of how to proceed with pending DWI cases as police officers and State Troopers continue to test drivers with the new device. This has resulted in delays in resolution of cases and backlogs which are jamming Municipal Court calendars. Obviously, as time passes, this situation will only become more aggravated as different Courts take different positions on how to use breath test results from the new device.
How the State of New Jersy ever allowed this situation to arise in the first place is hard to understand, as the same problems arose with implementation of the device’s predecessor, the Alcotest 7110. That will be a story for another day.
I am glad to also note that we continue to speak out on these and other important DWI issues. I am looking forward to participating in a podcast interview conducted by Mellisa Rosenblum, Esq. in the end of January of this year. Melissa is a leading, Certified Criminal Defense and DWI attorney in Southern Jersey. She presents podcast interviews as a service both to her clients and the legal community by delving into important legal issues of the day.
I am also pleased to be presenting on behalf of the New Jersey State Bar Association’s Institute for Continuing Legal Education in February in a seminar entitled “Advanced Municipal Court Practice”. I am sure many of the pending issues we have noted will be addressed at that time.
Finally, Annual Winter Session of the National College for DWI Defense will be taking place in Austin, Texas. This year’s conference will be examining the use of AI and other technologies in DWI investigations.