DWI Law - Woman Convicted of DWI Without Alcotest Loses 'High Heels' Defense

As reported in the New Jersey Law Journal:

With all the attention given to the debut of the high-tech Alcotest, it's easy to forget that drunken driving convictions can still be based on old-fashioned field sobriety tests.

That means a woman was justly convicted, without use of Alcotest results, based on unstable driving and deficient motor skills at a traffic stop that she blamed on a health disorder and on wearing high-heel shoes, the Appellate Division ruled Tuesday in State v. Salkewicz, A-0224-10.

"We agree with the Law Division judge's determination that the proofs concerning defendant's erratic driving and poor performance in the roadside tests were sufficient to establish defendant's guilt beyond a reasonable doubt," Judges Clarkson Fisher Jr. and Linda Baxter said in affirming the conviction.

Barbara Salkewicz was stopped on Oct. 3, 2008, in Manchester Township by Patrolman Adam Emmons, who had observed her repeatedly crossing the center line on Route 70 and driving erratically. She admitted to having had two glasses of wine.


Emmons had her perform sobriety tests, which she failed. She was unable to walk a straight line heel to toe or to stand with her feet together and raise one foot off the ground as directed. Taken to a police station, Salkewicz agreed to an Alcotest, the results of which showed a blood-alcohol content of 0.15 percent.

At her Manchester Township trial, Salkewicz's attorney, Evan Levow, objected to the admission of the Alcotest results because the administrator, Sgt. James Delane, failed to first observe her for a minimum of 20 minutes.

Municipal Court Judge Phillip Miller allowed the results to be admitted. Salkewicz entered a guilty plea conditioned on preserving her right to appeal. Miller agreed to stay the sentence.

Ocean County Superior Court Judge Ronald Hoffman remanded the case, saying Miller should have considered whether he could have convicted Salkewicz on Emmons' observations and Salkewicz's difficulties with the sobriety tests.

At the second trial, the municipal prosecutor, Valter Must, said he could no longer rely on the Alcotest results since he could not guarantee that Delane waited the required 20 minutes.

By then, Manchester had a new judge, Daniel Sahin, who based his decision to convict Salkewicz on a videotape of the traffic stop.

Levow had argued that Salkewicz was unsteady because she was wearing high heels and suffered from Graves disease, an autoimmune disorder, and that she momentarily drove erratically because she was reaching down to pick up something she had dropped.

Salkewicz again appealed and Hoffman upheld the conviction. Must had no authority to suppress the Alcotest results but the videotape showed ample evidence that Salkewicz was under the influence of alcohol, he said.

Hoffman said there was no way to tell whether high heels were to blame, since Salkewicz was wearing long slacks that went all the way to the ground. He noted that a state police expert's report did not state that said Graves disease could cause a person to be unsteady.

On appeal, Fisher and Baxter said that Must was within his rights not to introduce the Alcotest results at the second trial, and whether they were admitted or not made no difference.

"Here, the evidence presented before the municipal court was more than sufficient to establish that defendant was under the influence of alcohol while operating her vehicle."

Fisher and Baxter acknowledged that Salkewicz claimed that she had dropped something and that she couldn't do the tests well because of her high heels and her Graves disease, but they declined to use that to overturn the conviction.

"Although a defendant may proffer an innocent explanation for his or her conduct, that explanation will not exclude a finding of guilt when the evidence is sufficient to leave the fact-finder firmly convinced that the defendant is guilty of the offense charged," they said.

Levow says he will ask the panel to reconsider its decision because it did not have the benefit of being able to review the videotape.

"It's bizarre," Levow, of Levow and Associates in Cherry Hill, says of the ruling. "I'm going to ask for reconsideration because they didn't have all the evidence. They gave no weight to the fact that she has a neurological condition and was wearing high heels."

Senior Assistant Ocean County Prosecutor Samuel Marzarella says the ruling demonstrates that drunken drivers can still be convicted based on visual evidence. "It's part of the statute," he says. "People forget about that."

--- A.3d ----, 2012 WL 17834 (N.J.Super.A.D.)

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DUI Law - Underage Consumption Can't Be Based On Cop Sniff

This case comes from NCDD Member Steven Hernandez, and it is a great one! In State of New Jersey v. Koch, Not Reported in A.3d, 2011 WL 4434949 (N.J.Super.A.D.), the defendant was convicted in the Municipal Court of Mansfield of underage consumption of alcohol. Koch, an eighteen-year-old high school student, went to a party with his nineteen-year-old girlfriend Ashley. A neighbor complained to the police that young people attending the party were smoking marijuana and urinating on his lawn. Patrolman Joseph DeWitt testified that he responded to the location of the party. He saw that there were thirty to fifty cars parked near the home. It is undisputed that alcoholic beverages were being consumed in and around the home and on its deck. Upon the arrival of DeWitt in a marked squad car, around twenty young people ran into the woods behind the home. DeWitt did not pursue them. He did detain the forty to fifty young people who had not run into the woods. He lined them up; told them they were not free to leave; and proceeded to sniff the breath of each to determine if they had consumed alcohol. It is undisputed that no MirandaFN2 warnings were given. Specifically, no one was advised that they had the right to refuse to submit to being sniffed, or to remain silent.

According to DeWitt, just before he sniffed Koch, the young man said spontaneously, “I only had one.” He remembered that Koch's breath smelled of alcohol. After about twenty minutes, DeWitt told the group that they were free to leave, but must do so with a “sober” driver. No summonses were issued at that time.

Ninety minutes after DeWitt left the scene of the party, he came across Koch again. According to DeWitt, he saw a maroon Pontiac, later determined to be registered to Ashley Perch, stationary on the side of the road. He testified that Koch, Ashley and a young woman were the occupants of the vehicle, but, “the operator of the [Pontiac] when I first arrived was not Zeb Koch.” DeWitt distinctly remembered speaking with Koch about Koch and Ashley exchanging places, because “Ashley Perch was only 17 years old and was not allowed to drive after midnight.”

Ashley testified that Koch was with her the whole time at the party. He did not drink any alcoholic beverages, nor make any comment to DeWitt about drinking. She would not have let Koch drive her car if he had consumed an alcoholic beverage. According to her, after leaving the party with Koch, DeWitt pulled over her Pontiac. Koch was driving. The Pontiac was moving when DeWitt activated his overhead lights to pull it over. She confirmed that that she was nineteen years old, not seventeen as DeWitt had testified.

Koch testified and denied drinking any alcoholic beverages at the party. He was over eighteen on the day of the party. Ashley was not subject to a midnight curfew for new drivers.

After speaking briefly, DeWitt told Koch to continue driving the Pontiac. The motor vehicle stop ended and no charges were issued against anyone.

The defense attempted to introduce into evidence as Exhibit D–5, a videotape made by a camera in DeWitt's police vehicle. The exhibit was excluded from evidence, but it was a part of the record on appeal. One of the issues raised dealt with the admissibility of the video. The appeals court viewed the video. The video showed that the Pontiac was operated by Koch. It was moving for a considerable distance before DeWitt activated his overhead lights and pulled it over.

Four days later, on May 12, 2009, DeWitt issued a summons for underage drinking to Koch. Several days later, Koch learned about the charge for the first time, when his high school principal told him that he was being suspended from school activities because of an underage drinking charge. The defendant was convicted of the charge in the municipal court, and the conviction was affirmed in the trial court.

On appeal, the court held that the video was erroneously excluded:

"After a careful review of the record, we conclude that the Law Division judge erred in excluding Exhibit D–5, the videotape of a motor vehicle stop of Koch about an hour and a half after DeWitt left the scene of the party. That videotape directly impeached DeWitt's testimony. It tended to raise a reasonable doubt about the credibility and accuracy of DeWitt's identification of Koch as one of the partygoers who consumed alcohol. The videotape tended to impeach DeWitt's testimony that the Pontiac was stationery when he first saw it and someone other than Koch was the driver."

The appellate court also found that the defendant was in custody, and that the 'sniff' of his breath should have been preceded by Miranda warnings:

"The partygoers who remained at the scene were detained for about twenty minutes. They were not free to leave. DeWitt's sniffing of their breath was clearly in a custodial setting. His actions were an implied question to Koch and others to indicate whether they had consumed alcoholic beverages. For Miranda purposes, when determining whether a suspect has been subjected to custodial interrogation courts look “not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 300–01, 100 S.Ct. 1682, 1689–90, 64 L. Ed.2d 297, 307–08 (1980). In keeping with Miranda's protective aims, consideration is paid to the suspect's perception of events, not the intent of police. Innis, supra, 446 U.S. at 301, 100 S.Ct. at 1690, 64 L. Ed.2d at 308."

Finally, the court found that the smell of defendant's breath was insufficient to prove the charge of unlawful consumption as a matter of law:
"Moreover, the testimony of DeWitt that he sniffed alcohol on Koch's breath, even if believed, is insufficient as a matter of law to sustain a conviction. There were many young people at this party. Alcohol was being consumed by many of them. Therefore, the smell of alcohol in the area of the party was a given. The sniff test without excluding other sources, was not sufficient to establish that Koch was drinking. This is so, in light of the serious impeachment of DeWitt's credibility by D–5, which was erroneously excluded. The conviction cannot stand."

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DWI Law - New Jersey Booking Video Loss Creates Negative Inference

What happens if the police department has a booking room video of a defendant, and prior to retrieval the system (allegedly) corrupts, rendering the video irretrievable? In New Jersey v. Ayala, Not Reported in A.3d, 2011 WL 3476806 (N.J.Super.A.D.), the defendant sought suppression, arguing that the failure to have a system in place to download the video before it is subject to loss, was a suppressible scenario. Additionally, the defendant sought to have the jury instructed that they should draw a negative inference against the government for the incident.

On appeal, the court reviewed the constitutional law on the subject of destruction of evidence. Reviewing Trombetta and Youngblood, the court held that in the absence a showing of bad faith (which wasn't proven according to the trial judge) there was no basis for suppression.

Nevertheless, the court did authorize the use of a jury instruction, as well as introduction of the circumstances of how the tape was (neglectfully) not preserved, as an appropriate tactic to be employed by the defense:

"In its brief on this appeal, the State acknowledges that evidence relevant to the production and loss of the recording would be admissible. We agree.

"In addressing whether a state's loss of evidence that did not meet the Trombetta standard amounted to a denial of due process, the Supreme Court relied, in part, on the fact that the jury was instructed that it could draw an adverse inference if it determined that the state acted in bad faith. See Youngblood, supra, 488 U.S. at 54, 109 S.Ct. at 335, 102 L. Ed.2d at 287; cf. Marshall, 123 N.J. at 109 (quoting Youngblood on this point and finding no due process violation where the State diminished the prejudice by opting not to introduce the test results it obtained through testing of a tire that limited defendant's ability to conduct tests that may have produced exculpatory evidence). If the evidence presented at trial permits an inference of bad faith such an instruction should be given.

"We stress that this court's acceptance of the judge's finding that the officers' loss of the recording was not intentional or the result of bad faith is a product of our standard of review. On the evidence presented at the suppression hearing, a reasonable person crediting defendant's testimony and discrediting the officers' testimony could come to a different conclusion. We refer to the inconsistencies in the officers' testimony about activation of the recording device; the fact that Purcell claims he was unable to retrieve the recording in June but Butler testified that the power surge that affected the computer occurred in August; defendant's testimony that a tape recorder was used; and the fact that the State had no information as to recordings that were stored on the computer's server or hard drive.

"For all of the foregoing reasons, we conclude that the judge did not err in denying defendant's motion to suppress for failure to preserve the recording. Our holding assumes that the trial judge will admit the State's evidence subject to conditions that give defendant a reasonable means of presenting the exculpatory evidence through his own testimony and the inference available therefrom, including an instruction on any negative inference based on bad faith that is available from the evidence adduced at trial."

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DWI Appeal - NJ Court Bars Suspension as Untimely

In Galeano v. new Jersey, Not Reported in A.3d, 2011 WL 2301104 (N.J.Super.A.D.), the New Jersey licensed defendant was arrested and convicted of DUI in Fliorida in 2003. The Florida court entered a supplemental order dated July 2, 2004, which stated that his probation had been successfully terminated. In July 2010, the New Jersey Motor Vehicle Commission received a report of conviction from Florida pursuant to the Interstate Driver License Compact. The Compact provides, among other things, that “[t]he licensing authority of a party State shall report each conviction of a person from another party State occurring within its jurisdiction to the licensing authority of the home State of the licensee.” The Commission issued a notice dated July 19, 2010, informing Galeano that his driver's license would be suspended for 210 days, beginning August 13, 2010, as a result of an alcohol-related violation that occurred in Florida on August 19, 2003.

On appeal, the Court reversed the suspension, finding that it was untimely:

The Compact does not specify the time in which a party State must report a conviction to the home State of a licensed driver. However, when a contract does not specify the time in which action must be taken, “the law infers that the contract will be performed within a reasonable time.” In re Estate of Yates, 368 N.J.Super. 226, 236 (App.Div.2004). “What constitutes a ‘reasonable time’ is usually an implication of fact, and not of law, derivable from the language used by the parties considered in the context of the subject matter and the attendant circumstances, in aid of the apparent intention.” Ibid. (quoting Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9, 28 (1958)).

Reporting of a conviction of the motor vehicle laws to a licensee's home state within a reasonable time is necessary in order to achieve the purposes set out in the Compact, one of which is to “[p]romote compliance” with laws governing the operation of motor vehicles. N.J.S.A. 39:5D–1(b)(1). A driver's conviction of a motor vehicle offense indicates that the driver may pose some danger to other drivers or the public generally. N.J.S.A. 39:5D–1(a)(2). Therefore, the Compact envisions that such a conviction would be reported to the driver's home State within a reasonable time so that the home State may impose its penalties as a result of that conviction within a reasonable time thereafter.

We are convinced that the Compact does not authorize New Jersey to suspend Galeano's license based on his 2003 Florida DUI conviction because Florida did not report the conviction within a reasonable time. We recognize that the delay here is not attributable to the Commission. Nevertheless, the Commission suspended Galeano's license pursuant to the Compact, and its authority to do so is dependent upon Florida's reporting of the out-of-state conviction within a reasonable time, which did not occur here.

Moreover, the suspension of Galeano's license under these circumstances violates his right to fundamental fairness and due process. License suspension proceedings “affect drivers in a serious way” because they “often threaten [ ]” a driver's ability “to earn a livelihood[.]” In re Arndt, 67 N.J. 432, 436 (1975). Consequently, such proceedings “must meet those incidents of fairness” that underlie the constitutional right to due process. Ibid.

Editor's Note: Many states, in an effort to obtain outstanding fines and monies uncollected on drunk driving cases and bond forfeitures, are uploading DUI/DWI convictions on cases going back to the 1970's (Illinois is one example)The doctrine of laches is sometimes available to fight against these late notices. However, the above case would not be a good laches case, since New Jersey itself acted promptly. If anything the laches would only apply to the reporting party, and such litigation is difficult and many states have statutorily immunized themselves from laches defenses.


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DWI Appeal - Notice and Demand Statutes and the Right of Confrontation

After SCOTUS approved of the use of notice-and-demand statutes, counsel needs to be conscientious of these provisions. In State of New Jersey v. Heisler, --- A.3d ----, 2011 WL 1885670 (N.J.Super.A.D.) the defendant was charged with (and convicted of) driving under the influence of marijuana. The New Jersey statute first requires the State to notify a defendant at least twenty days before trial that it intends to offer into evidence a laboratory certificate (lab certificate) regarding the composition, quality and quantity of drugs, and must furnish defendant with a copy of the certificate and “all reports relating to the analysis in question.” Second, the defendant must object within ten days of receiving the State's notice of intent, or else waive any objections to the admission of the lab certificate.

In the case sub judice, the State served defendant with a copy of the lab certificate and notice of intent to offer it into evidence, but the State did not furnish the related reports. More than ten days after receiving the certificate, defendant objected. The municipal court agreed with the State that defendant's objection was untimely, and allowed the certificate into evidence.

The appeals court found that the delay by the State in supplying the required reports tolled the running of the 10 day provision for objecting, and therefore reversed the trial court's ruling:

"We find persuasive defendant's argument that he was not obliged to object to the introduction of the lab certificate until ten days after receiving supporting lab reports and data. To rule otherwise would undermine the dual goals of the notice and demand statute, N .J.S.A. 2C:35–19: (1) to enable defendants to make informed decisions regarding whether to object; and (2) to conserve time and resources of State Laboratory personnel by avoiding unnecessary court appearances. Because defendant objected before the State furnished him with the supporting materials, his objection was timely. Therefore, the court erred in admitting the lab certificate without testimony from the lab analyst and an opportunity for cross-examination."

The case was remanded for a new trial. Of note was the appellate court's additional ruling barring the State from admitting the lab evidence:

"However, the State shall not have the opportunity to call the lab analyst and to cure the initial error of admitting the lab certificate. “A remand is inappropriate in order to afford the State the opportunity to provide proofs it should have provided in the initial trial which were necessary to support a conviction.” State v. McLendon, 331 N.J.Super. 104, 108 (App.Div.2000)."

Lastly, there was an interesting discussion of how to deal with defense attorneys who ALWAYS object to lab reports and insist on confrontation:

While we have discouraged a defendant's “pro forma insistence” that the author of a lab certificate appear in court, we have recognized the defendant's right of confrontation. State v. Kent, supra, 391 N.J.Super. at 380; see also id. at 385–90 (Stern, J., concurring) (concluding that the Supreme Court would apply the Confrontation Clause protections to defendants in prosecutions for quasi-criminal violations involving driving while intoxicated). A defendant need not justify his or her decision to exercise his or her constitutional right of confrontation. An accused is entitled to confront the lab certificate's author, so long as a timely objection is made. State v. Rehmann, ––– N.J.Super. ––––, –––– (App.Div.2011) (slip op. at 5) (“Prior to Melendez–Diaz, we recognized the accused's right to confront the author of a BAC certificate.”); State v. Kent, supra, 391 N.J.Super. at 375 (holding that “defendant was constitutionally entitled to cross-examine the declarants who authored” laboratory reports and blood sample certificate); id. at 382 (stating that defendant may waive his confrontation right by failing to make timely demand for the author's appearance)."

"The effective operation of the notice and demand statute depends in part on the presumption that, as a practical matter, “in the majority of cases a defendant will not challenge the certificate ‘either because the focus of the defense is otherwise or because he or she may not wish to suffer the piling-on effect of a live witness when there is no true contest over the nature of the tested substance.’ “ State v. Simbara, supra, 175 N.J. at 49 (quoting State v. Miller, supra, 170 N.J. at 431). However, if the defendant is unable to determine, because of the absence of laboratory data, whether there is a basis to wage a “true contest” over the nature of the substance, then the defendant may lodge a protective objection."

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DWI Appeal - New Jersey CDL Driver Wrongfully Charged with Refusal

In State of New Jersey v. Nunnally, --- A.3d ----, 2011 WL 1660628 (N.J.Super.A.D.) the defendant was arrested for a violation of the NJ statute prohibiting operation of a commercial motor vehicle by a driver “with an alcohol concentration of 0.04% or more.”. After defendant refused to submit to the breath test, the arresting officer also charged him with violating the general refusal statute instead of the statute pertaining to refusal by a person driving a commercial vehicle (CDL refusal statute). In New Jersey, a complaint for refusing a breath test must be made within ninety days after the commission of the offense, which had already passed. The Law Division dismissed the refusal charge, agreeing with the municipal judge that the State could not prosecute defendant under the general refusal statute in these circumstances and the State could not amend the complaint to charge defendant with CDL refusal, on the day of trial and after the ninety-day statute of limitations had run. The State appealed.


On appeal, the State raised three arguments. First, it contended that the proposed amendment was solely to correct a “technical defect” in the complaint. The appeals court concluded that a failure to cite the correct substantive offense was not a “technical defect” subject to amendment.



Second, the State argued that the amendment should have been permitted because “a CDL refusal is the same substantive offense or a lesser included offense of a general refusal.” The appeals court concluded that CDL refusal was not a lesser included offense of general refusal, because the two offenses require proof of different facts.



Finally, the State asserted that it can prosecute defendant for violating the general refusal statute, which was cited in the complaint. The appeals court concluded that this driver could not be charged with a general refusal because he was arrested for CDL DUI (0.04% and above) but was never arrested for a general DUI (i.e. 0.08% or above):

"It therefore makes logical sense that an arrest for the predicate offense is an element of the corresponding refusal offense, because the purpose of the breath test is to obtain “scientific evidence” to prove the offense for which the person was arrested. Marquez, supra, 202 N.J. at 497. Of course, the Legislature conceivably could have structured the general and CDL refusal laws differently, to permit prosecution for general refusal based on an arrest for CDL DUI, but that is not how the laws were written. Further, even if we deemed the refusal statutes to be ambiguous, because they are quasi-criminal we would be constrained to construe them narrowly, in favor of the defendant."

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DWI Appeal - NJ Stop for Waiting at Green Light Illegal

In State of New Jersey v. Brackin, --- A.3d ----, 2011 WL 1661381 (N.J.Super.A.D.), the defendant was pulled over after he was stopped at a green light for 10 seconds and then pulled away without incident. The first judge found that the stop was reasonable. Counsel for defendant argued that the stop was unjustified. In support of that position, counsel relied on State v. Cryan, 320 N.J.Super. 325 (App.Div.1999), in which we held that the fact that a vehicle, at 4:25 a.m., remained stopped at a light for five seconds after it turned green, then proceeded slowly to turn left, did not justify a police stop of the vehicle under the police's community caretaking function.On appeal to the Law Division, following a review of the record and oral argument on the law, the judge found that reasonable suspicion sufficient to justify the stop had been demonstrated as the result of defendant's delay in proceeding on a green light. In reaching his conclusion, the judge relied on an unpublished opinion affirming a determination that reasonable suspicion was raised by defendant's conduct in remaining stopped after a light turned green for more than sixty seconds and by the fact that the defendant looked directly at the police officer before proceeding slowly through the intersection. In that decision, Cryan was distinguished on the basis that the delay in proceeding was much shorter and the driver did not look directly at the police. Despite the fact that the evidence in the present case more closely resembled that of Cryan than the unreported decision upon which the judge relied, he found the stop to have been justified. After finding defendant guilty, the judge imposed fines and surcharges, a two-year loss of license and registration privileges and forty-eight hours of instruction at the Intoxicated Driver's Resource Center. A stay of sentence pending appeal was denied.
The appeals court here reversed the conviction and ruled that the stop was illegal:

"[W]e agree that a pause of the length that Officer Tobin testified to observing is not of sufficient length to have raised community caretaking concerns, particularly in circumstances in which defendant's driving after commencing to proceed through the light was unexceptionable.* * * * Officer Tobin could not have had a reasonable belief that a traffic law had been violated, id. at 383, thereby justifying the stop, because as he testified, no cars followed defendant's, and thus there was indisputably no traffic to obstruct. Thus, we adhere to our conclusion that a reasonable, articulable suspicion that a motor vehicle violation had been committed was not established."

EDITORS NOTE: There are several state cases on both sides of the fence on this issue. For example, in Illinois it has been held that a delay of 3-5 seconds at a green light, while the officer is waiting behind the vehicle, is enough to stop the vehicle.


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DWI Appeal - NJ Margin of Error in Alcotest Rejected

In State of New Jersey v. Miceski, Not Reported in A.3d, 2011 WL 1327436 (N.J.Super.A.D.), the defendant submitted to a breath test on an Alcotest 7110 MK-III C ("Alcotest"). The Alcotest performs two readings - one involving an infrared analysis, and the other involving an electro-chemical analysis. Here, the reading for both were 0.084, truncated to 0.08%. The court heard testimony from defense expert Gary Aramini, that the Alcotest calibrations were reading 'high'. Aramini provided a technical explanation for the readings, but conceded they were within the acceptable range of tolerance. He also stated that there is 0.005% margin of error in any Alcotest AIR reading. Aramini stated within a reasonable degree of scientific certainty that defendant's actual BAC could have been below 0.08%.

The Law Division granted in part defendant's motion to suppress the Alcotest readings. Because the calibration testing demonstrated “an unofficially high reading,” the court concluded the actual BAC could have been 0.78% or 0.79%. The Law Division remanded the matter to municipal court with an order that the Alcotest results were admissible, but could not result in a per se DWI violation. The Law Division also stayed its order and all further municipal court proceedings pending the State's appeal.
On appeal, the court held that the Alcotest has been held to be “generally scientifically reliable,” and with certain modifications, its results admissible to support a per se violation of N.J.S.A. 39:4–50. Chun, supra, 194 N.J. at 65. The expert's opinions concerning tests conducted during calibration and the solution change did not establish any flaw in the Alcotest or its readings. Instead, the expert's concession that the readings were within acceptable tolerances established that they were within “the range of any set of measurements that is accepted as being representative of a true reading.” The court held that the 0.005% margin of error is taken into consideration when the Alcotest is properly administered:

"Chun ordered the programmed Alcotest range of tolerance be revised such that the benchmark for a true reading of BAC must be set at plus or minus five percent or, in absolute terms, “0.005 percent BAC from the mean or plus or minus five percent of the mean, whichever is greater[.]” Id. at 116. This requires two calculations when setting the upper and lower limits. Id. at 116, 119. Because the Firmware version 3.11 at issue utilized a plus/minus ten percent range of tolerance, manual calculations on a worksheet developed by the Court (Worksheet A) were required to assure accuracy."

The court concluded that as long as the EC and IR readings fall within the acceptable range of tolerance, the final BAC reading shall be deemed sufficiently reliable to be admissible as proof of a per se violation, and that the margin of error of 0.005% could not be used to defeat a per se violation.


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DWI Appeal - New Jersey Bars Police Opinions on Guilt

In State v McLean, the NJ Supreme Court reversed a drug conviction which had been partially based upon use of the so called "lay opinion rule" where the police officer testified based upon his training and experience as to what constituted intent to distribute. This type of issue is a hot topic in DWI law as well, since the Jersey case of State v Bealor allowed officers to testify upon their training and experience as to marijuana intoxication. The Court here finds that either you are an expert or a lay witness but there is no in between. In the Courts words:

"The Court has established the boundary line that separates factual testimony by police officers from permissible expert opinion testimony. On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. On the other side, the Court has permitted experts with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. In this appeal, the State suggests, and the appellate panel agreed, that there is a category of testimony that lies between those two spheres, governed by the lay opinion rule. The Court does not agree. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case. The testimony of the police detective – because it was elicited by a question that referred to the officer’s training, education and experience – in actuality called for an impermissible expert opinion. "

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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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DWI Appeal - Acquittal Reversed, But Failure to Provide Breath Test Data Causes Suppression

In State of New Jersey v. Tsoullis, Not Reported in A.3d, 2011 WL 767721 (N.J.Super.A.D.), the defendant sought a download of the data for the Alcotest breath alcohol machine from the prosecutor. After a failure to provide the download, the municipal judge, at the request of the defendant, suppressed the result. The defendant then entered a conditional plea of guilty, and sought review in the Law Division. The law division judge found that the failure to provide the download data not only violated Brady v. Maryland, but also raised a reasonable doubt as to the defendant's guilt. Hence, the judge entered a judgment of acquittal. The prosecution appealed.

On appeal, the first issue raised was whether the appeal of a judgment of acquittal violated double jeopardy. Acknowledging that, as a general rule, an acquittal cannot be appealed, the appeals court found that the law division's order was more appropriately an order of dismissal for a discovery violation, and hence reviewable.

On review, the appeals court found that the failure to provide the download was a proper basis for suppressing the test result, but that outright dismissal was not proper. First, there was no evidence that the data, if produced, would have been favorable to defendant. Hence a Brady violation did not occur (there is good case law cited for the proposition that if a Brady violation occurs then total dismissal is appropriate). Equally, since there was no evidence that the data, if produced, would have proven that the defendant was NOT under the influence, a judgment of acquittal was also erroneous. The cause was reversed and remanded to reinstate the plea of guilty.


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New Jersey Holds Drunk Drivers Can Recover From Bars That Over-Served Them

Image by afsart via Flickr

Last week, the New Jersey Law Journal reported on a New Jersey appeals court's ruling in Voss v. Tranquilino, A-5431. In Voss, the court addressed the issue of whether a person convicted of drunk driving can then turn around and sue the bar that over-served them for economic and non-economic damages. The defendant in Voss, the bar at which he had been drinking, asserted that it was immune from liability pursuant to the operation of the 1997 anti-drunken driving amendments to motor vehicle insurance law, at N.J.S.A. 39:6A-4.5(b), which specifically state that a driver convicted of DWI in connection with an accident "shall have no cause of action for his or her injuries." The court disagreed, basing its decision on the the legislative intent behind the law:

(The) legislature could not have thought it could reduce the number of drunken drivers by immunizing liquor establishments from their claims and thus providing a disincentive to the licensees...

The court's decision makes sense. Although some might argue that it encourages people to drink and drive, bar owners should not be exempted from dram shop laws when the natural extension of their negligent action occurs: the drunk person operates a motor vehicle and is involved in an accident. Had the person not been intoxicated he or she might not have made the unfortunate decision to operate a motor vehicle while intoxicated. Where the bar's failure to stop serving alcohol to the injured party may have been at least one cause of the accident, the bar should not be absolved from liability by operation of law. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!