DWI FAQ
Attorney - Robert A. Scirocco
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Why Are The Rules For Breath Testing So Complex?

In the case of State v. Spell, the Supreme Court justices ruled that the police are not required to read the second portion of the statement advising DWI suspects of their obligation to provide a breath sample (commonly referred to as “paragraph 36”) in every case.

In reversing the appellate division, the court went on to hold that New Jersey law only requires the reading of the second portion of paragraph 36 when the suspect asks for an attorney or provides an ambiguous answer to the law enforcement’s request to submit to the test. In those cases where the defendant flatly refuses to provide a breath sample, it is not necessary to read the second portion of the warning.

The court’s decision renders moot a serious constitutional issue raised before the appellate division related to the authority of the judiciary to dictate police procedures.

Is There A Ban On DWI Plea Bargaining?

A law division decision banning plea bargaining in DWI cases on appeal was approved for publication. In the case of State v. Rastogi, the county prosecutor sought to enforce a negotiated plea disposition on a DWI case that has been appealed from municipal court.

The prosecutor contended that, due to perceived weaknesses in the state’s DWI case on appeal, it would offer the defendant an opportunity to plead guilty to a different offense. The prosecutor also maintained that the prescription against plea bargaining contained in the Guidelines to the Part VII (municipal court) Rules do not apply to county prosecutors and their activities in the superior court.

The law division judge rejected the prosecutor’s argument and ruled that the policy considerations behind the plea bargaining ban in municipal court also apply to cases that are appealed to the superior court, law division, for a trial de novo from municipal court.

Is The Alcotest Valid?

The Supreme Court has now issued its long-awaited opinion on the validity of the Alcotest, which a few years ago replaced the Breathalyzer in most counties in the state.

The Alcotest is a computer-programmed machine that takes breath samples from drivers suspected of driving while intoxicated and calculates the blood alcohol level of the suspect. The members of the court in State v. Chun found that the machine is more reliable than the Breathalyzer because it has less to do with human operation and more with the programmed functions contained in the machine itself.

Can I Confront The Lab Tech Who Performed My Blood Test?

The decision in the case of State v. Kent represents an attempt by the court to implement the requirements of the Confrontation Clause as construed by the Supreme Court in Crawford v. Washington in a manner that recognizes the practical realities of DWI trials in municipal court. Kent is a DWI blood case.

In its ruling, the appellate division affirmed its previous rulings in State v. Berezanski and State v. Renshaw to the effect that a defendant has the right to personally confront the lab tech and the person who drew the blood sample at trial. However, the court was also troubled by the practical impact that such required testimony will have on lab techs, nurses and other people involved in the system.

In noting the possibility of potential hardship, the court announced that it disfavors the pro forma insistence that such witnesses appear at DWI trials to vouch for the contents of their reports if there are no bona fide issues about them.

Accordingly, the court ruled that defense attorneys who seek to require live testimony at trial of such witness must give notice to the prosecutor. A failure by the defense to provide such notice will be deemed a waiver. The court also implied that under Rule 1:4-8 and NJRE 611, the state may seek to avoid the appearance of these witnesses in blood cases by asserting that no legitimate factual issues exist.

Finally, the court suggested that in order to avoid hardship to the witnesses, the municipal court may want to use remote video conferences or depositions taken on a de bene esse basis.

This Is My Third DWI Conviction. Will I Go To Jail?

Unless there is a compelling reason spelled out on the record, yes. The administrative director of the courts has issued a memorandum to municipal court judges that instructs them to send defendants who have been convicted of third offense drunk driving violations directly to jail from the courtroom.

The memorandum also indicates that when a defendant seeks to enroll in an in-patient program in lieu of jail, the relevant jail sentence less any anticipated credits should be served first. Judges may also award discretionary credit for in-patient time accomplished prior to the imposition of the balance of the jail sentence.

What Is The 20-Minute Observation Issue?

In a comprehensive, written decision stemming from a municipal appeal, a judge of the superior court, law division, has construed the 20-minute observation period that is required as a foundational proof for the admissibility of Alcotest blood-alcohol results. In the municipal appeal, captioned State v. Nagorniak, Judge Mitchel Ostrer, J.S.C., ruled that the requirement of a 20-minute observation period is not merely dicta in the Supreme Court’s decision in State v. Chun, 194 N.J. 54 (2008), but rather is a foundational issue that must be proved by the state by clear and convincing evidence.

The judge also went on to hold that although the Alcotest operator need not be the only person continuously observing the test subject, an observing police officer who is not a qualified operator must know what to look for and what specifically to observe about the test subject in order to meet the state’s burden. Without such proofs, the Alcotest results are inadmissible.

Do Police Need To Have A Warrant To Draw My Blood?

Yes, but there are exceptions to this rule. Blood alcohol tests are routinely administered by the police – along with breath tests – to determine the level of alcohol content in the blood of a driver suspected of drunk driving. But the general rule is that because the drawing of blood is such an intrusion into the human body, it constitutes a “search and seizure” under the US Constitution.

In most cases, a warrant needs to be obtained before a blood test can be administered. There are exceptions to the rule. As set forth in the recent New Jersey case of State v. Zalcberg, when an officer reasonably believes that he does not have time to secure a warrant from a judge or magistrate, because of the rapid burn-off rate of alcohol in a suspect’s system, he may compel the suspect to submit to such a blood test without this warrant.

Arrested For DWI? Call Us Right Away.

At Robert A. Scirocco and Associates Counselors at Law, we provide clear answers to your questions and explanations in plain language. You have much at stake after an arrest for DWI. Our experienced criminal law attorneys will protect your rights to the best possible outcome. Call 973-691-1188 or email us to schedule a consultation.