DWI Appeal - A 25.7 Second Blow and Impossibility

In State of New Jersey v. Schworn, Not Reported in A.3d, 2011 WL 1161628 (N.J.Super.A.D.), the defendant was found not guilty of DWI but guilty of driving with 0.08 or more (breath test). On appeal, the defendant contended that there was insufficient evidence that the 20 minute pre-test observation period was performed, and that the court should have taken judicial notice that it was 'impossible' for a person to blow for 16.2 seconds or 25.7 seconds, and therefore the results of the test were not believable.

The evidence at trial revealed that the officer recorded in his report that the observation period started at 1:50 a .m. and ended at 2:10 a.m., but the report issued from the Alcotest machine indicated that the test protocol began at 2:07 a.m. When confronted about this at trial, however, the officer explained that he gauged the twenty-minute observation period by reference to his wristwatch and not by the Alcotest timer. On appeal, the court held that it was acceptable for the trial judge to believe the cops explanation.

Additionally, there was testimony that the defendant provided the Alcotest machine with two breaths within two minutes, the first of which lasted for 16.2 seconds and the second lasted for 25.7 seconds. Defendant argued that the trial court erroneously refused her invitation to take judicial notice that exhaling for those periods of time was not possible. The appeals court stated:

"[T]he precise point raised on appeal is not that the judge's finding of guilt was against the weight of the evidence but that he failed to take judicial notice of the impossibility of the extent and timing of the breaths provided by defendant. Even if it could be assumed, which we doubt, that this was a proper area for the application of N.J.R.E. 201(c), we are satisfied the judge did not abuse his discretion in refusing defendant's request."

NOTE: Judicial notice can be given to incontrovertible facts or to those that can be easily determined. The pull of gravity is one. The sun rising and falling every day is another. The ability to blow a single breath into an Alcotest for 16.2 or 25.7 seconds should have been another. Apparently though, some of the NJ justices must have met some very large blowhards in their lifetime. What is the longest one can blow into an Alcotest?

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