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The State Must Prove Several Elements BEFORE you can be Convicted of Drunk Driving. A Defense Attorney Should force the Government to Establish the following beyond a Reasonable Doubt:
Prerequisites. Almost all drunk driving charges arise from motor vehicle stops, which, pursuant to the United States Constitution, are warrant less seizures. Seizures made without an arrest warrant are presumed to be unreasonable. The State, therefore, MUST establish that the officer had probable cause to (a) stop you, and (b) arrest you for drunk driving. Probable cause is a reasonable and articulable suspicion that you, or your vehicle, are subject to seizure because you violated a law. This is not always readily established, and must be proven before trial can even proceed.
Elements. If this prerequisite is established, the prosecution must then establish several elements of the offense. To convict you of drunk driving, the State must prove beyond a reasonable doubt that you:
- operated or intended to operate a motor vehicle on a highway or quasi-public roadway
- that your motor vehicle was in operable condition
- while you were either:
- under the influence of liquor (based on your physical appearance)
- or with an alcohol concentration of .10 per cent by weight of alcohol in your blood or breath (based on chemical testing).
Breath Tests. Breath testing is by far the most common way of testing for blood alcohol content [“BAC”]. The Breathalyzer is the most commonly utilized machine to test breath in New Jersey, however, newer and far more accurate devices are currently being introduced.
What the State Must Prove to Show a Breath Test is Reliable
A breathalyzer reading is subject to stringent admissibility standards pursuant to case law and the rules of evidence. The obtained results are not readily submitted before the court. For example, before the court can hear what the alleged breath test results are, the State must establish numerous prerequisite facts. Among them are:
- The machine was working properly
- The officer who operated the machine was certified by the Attorney General to use it.
- Radio frequency interference did not affect the machine.
- The test was administered correctly.
- Chemicals utilized in the testing procedure were properly constituted.
- There were no physical problems which may have affected your results.
Documents All Defendants Who Gave Breath Samples Should See in Discovery
before Deciding What to Do
- Police copies of the Summons and Complaint
- Drinking-Driving Report, including
- an observations check-off sheet and
- a narrative of investigation
- Alcohol Influence Report, including
- Chemical test information
- full identification of the machine used
- the type of machine used
- the machine’s manufacturer
- the machine’s model number
- the time the tests were given
- test results
- a Breathalyzer operational checklist
- Breath Test Instrument Inspection certificates, which show results of periodic inspection of the machine:
- one dated before your breath test
- one dated after
- others from year before your arrest
- one showing when this machine was placed in service
- Breathalyzer Operator Certification Card
- assay report for ampule chemicals
- State Police certificate of analysis for breath alcohol simulator solution
- Documents you signed, if any
Additional Trial Preparation
You may need to hire an expert witness.
If a defect afflicts the Breathalyzer or its operation, the defense may call an expert witness, often a factory trained Breathalyzer technician formerly certified by the Attorney General as a Breath Test Coordinator Instructor with the New Jersey State Police. The New Jersey State Police opposes defense attempts to call presently certified Breath Test Coordinator Instructors as experts for the defense. This will be discussed in detail before doing so.
We may also need to consider hiring a medical doctor if you have a health problem that affects breath test results (e.g., diabetes, hypoglycemia, asthma, fever, ulcers, hiatal hernia, and use of certain medications) or causes you to sway, stagger, have bloodshot watery eyes and droopy lids, fumble and move your hands slowly, and show other signs that may be mistaken for intoxication (e.g., diabetes, hypoglycemia, inner ear and eye disorders, neurological deficits, and allergies).
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