The Future of DUI Testing In NJ

Those arrested for driving under the influence (DUI), N.J.S.A. 39:4-50, are most often exonerated or convicted based on the results of chemical breath testing. The Alcotest machine is presently used to determine whether individuals were driving under the influence by using chemical testing to determine their blood alcohol content (BAC) exceeds the legal limit in New Jersey. The machine has been the subject of multiple challenges, the most well-known being State v. Chun, 195 N.J. 54 (2009),and the NJ Attorney General's Office indicated to the NJ Supreme Court that the machine's use would be discontinued by the end of 2016 in light of the machine's manufacturer, Draeger Safety, announcing they would no longer support the machine. Over the years since the Alcotest 7110 was introduced in NJ in 2001, the software has become outdated and the scientific reliability has come into question. Now, as the sun is setting on the Attorney General's time to find a suitable replacement, pay for another company to service the Alcotest machine or for the state to begin serving the machine in-house, those subject to testing for driving while intoxicated, especially those found to be just over the legal limit, are left with the fact that although they may be convicted based on results that have a reasonable probability of being inaccurate, the Attorney General's Office has a window of opportunity wherein this probability is allowed to persist. Additionally, as of this date, no suitable replacement has been indicated by the Office of the Attorney General. If you are facing charges of DUI, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DWI, refusal to submit to chemical breath testing, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Stay Of Suspension During DUI Appeals Becomes Unlikely

As a result of State v. Robinson, judges have been warned about the stay of license suspensions pending appeal in driving under the influence (DUI) cases. Brian Robertson was convicted of driving while intoxicated as a result of the officers observations and his Alcotest reading of .13% blood alcohol content (BAC) after Robertson provided breath samples. In an effort to eliminate the Alcotest results, the defendant sought records with regard to repairs and diagnostic tests with regard to the specific Alcotest machine used. The records were not provided and the defendant appealed. Both the municipal court judge and the state court judge stayed the sentence of 7 month license suspension pending appeal. The NJ Appellate Division affirmed the conviction as some of the records sought had been deleted in good faith and others would not sway the court from convicting the defendant based on the officers observations and totality of the circumstances. The most problematic issue with this case for the Appellate Division was the stays of sentence permitted without findings as to the factors set forth in Crowe v. DeGioia, 90 N.J. 126 (1982). The factors include the result of irreparable harm to the defendant if temporary relief is not afforded, whether any substantial issue remains unsettled, whether all material facts are controverted, and the whether a hardship would result to the defendant in the event the defendant's license suspension was not stayed. Neither the municipal court judge nor law division judge made findings with regard to defendant's driving or substance abuse history or any harms, such as loss of employment, he could have sustained as a result of the sentence imposed. As a result of the need to protect the public from the possibility of defendant's re-offending during the appellate process, judges are cautioned that stays pending appeal are not to be utilized "without giving good reason for it." A conviction for driving while intoxicated or driving under the influence in NJ has serious and lasting effects including the obvious loss of license as well as ramifications in later civil or criminal suits for wrongful death, damages and the like. A DUI, even if a first, can result in lengthy suspensions, fines and even jeopardize your ability to obtain certain professional licenses or other jobs. If you are charged with DUI in NJ, you should contact an experienced driving under the influence defense attorney to protect your rights. For more information about DWI, drug DUI, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in New Jersey visit www.HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Prior DUI Convictions Enhance Penalty For Refusal In NJ

In the recent case of State v. Frye, the NJ Supreme Court upheld the use of prior Driving Under the Influence (DUI) convictions to enhance the sentence for refusal to submit to chemical breath testing. In Frye, the defendant was convicted to a 10 year loss of license as a result of 2 prior DUIs. Although the court held, in State v. Ciancaglini, 204 N.J. 597 (2011) that a prior refusals to submit to chemical breath testing could not be used to enhance penalties for subsequent DUIs, the Frye court found the logic behind this instant decision to be different. The Court reasoned that, failure to utilize prior DUI convictions to enhance refusal convictions would then leave a strategic opportunity to repeat DUI offenders to obtain a significantly reduced penalty for subsequent offenses by simply refusing to submit to the Alcotest. The chemical breath test refusal statute, N.J.S.A. 39:4-50.4a, does contemplate enhanced sentencing for repeat refusal offenses in a manner which parallels enhancement for repeat DUI offenses bringing the Frye decision in line with the Legislative intent of keeping intoxicated drivers off NJ roads. The Frye decision is not the first of its kind in New Jersey. In re Bergwall, 85 N.J. 382 (1981), decided by the NJ Supreme Court over 30 years ago, held that a prior DUI convictions should be used to enhance suspensions in refusal cases. If you are facing charges of DUI or refusal, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DUI, controlled dangerous substance (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

DUI Discovery Rules Apply To Defendants, Not State

Right to speedy DUI trial, as long as the state wants one, and the right to know the evidence the state will use against you but anything they leave out will be admissible later. Hardly sounds fair right? In State v. Wolfe the defendant was convicted of driving while intoxicated based only on his Alcotest result. The DUI was the second for defendant, carrying harsher penalties. The state failed to provide discovery, including the Alcohol Influence Report (AIR) which includes machine test blanks, defendant’s test times, breath sample quantities and provides the defendant’s blood alcohol content (BAC) level to determine whether defendant is over the legal limit of .08%. At the time the trial began Wolfe, not having received the results of his breathylizer test, believed the trial would be based only on the observation of officers on the scene of the arrest regarding his balance, coordination and ability to process information mentally. Midway through the trial the state provided the results and defendant was convicted of per se driving under the influence based on the Alcotest result. The New Jersey Appellate Division affirmed the conviction because defendant suffered no prejudice as a result of the delay and the state’s failure to submit the document was an error and not intentional. By way of contrast, if the defendant failed to provide notice of exhibits or witnesses, was not ready to proceed or otherwise sought to alter the standard procedure in the trial of the matter it is unlikely, based on experience, that judges would allow for such measures by defendants. Driving under the influence of alcohol or drugs in New Jersey can have serious and lasting consequences including the loss of license which limits freedom, can preclude you from certain jobs or other opportunities, bears substantial fines and penalties including the possibility of an interlock device being installed in your vehicle and even jail time. If you are charged with DUI, you should consult an experienced attorney immediately to provide you with the best defense possible and ensure your rights are protected. For more information about DWI, controlled dangerous substances (CDS) in a motor vehicle, reckless driving, driving while suspended or other serious municipal court matters visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Alcotest to Stay For Now In NJ

The New Jersey Supreme Court has ruled that, for the time being, the Alcotest, the chemical test formerly known as the Breathylizer, given to drivers arrested for Driving Under the Influence (DUI) to test their blood alcohol content (BAC) or alcohol to blood ratio, will stay after much debate. For months there has been much discussion of the possibility of dispensing with the Alcotest as a result of the State's failure to comply with the ruling in State v. Chun, 194 N.J. 54 (2008), the monumental case pertaining to the implementation of the Alcotest in place of the Breathylizer and wheher the Alcotest was scientifically reliable as a means of measuring BAC levels. In Chun, the NJ Supreme Court held the Alcotest to be scientifically reliable at the time and that, with the nine software revisions to be implemented over time by the manufacturer, Draeger, it would remain reliable. The recent litigation was over the fact that Draeger never did the software updates and a database that set up to store information regarding Alcotest device logs, including service dates and test results, which attorneys could use in trying DUI matters in the event of errors or discrepancies with machine results. In the past two years there have been an increasing number of people questioning the reliability of the device based on errors in the database and lack of software updates. The result of unreliable machine or data could be a significant detriment to those facing charges of driving under the influence. The NJ Supreme Court has now made it clear that they are deeming the machine to be reliable yet intend to replace its use in the State of New Jersey within the next 3 years. The court expressed that if a suitable replacement can be found they will consider the device, however, in spite of the Courts reversal of it's own prior requirement for updates and database maintenance, with the three years ahead on them there is no rush. DWI in NJ will have a serious impact on your life and can have significant implications in related matters such as later personal injury. If you are charged with a DWI in NJ you should seek an experienced attorney immediately to protect your rights. For more information about DWI, DUI, possession of a CDS in a motor vehicle, reckless driving or other serious municipal court or traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sleeping it Off In Your Car Can Lead to DUI and Drug Charges

Happy 4th of July! Here's a tip for those celebrating with alcohol: If the police find you sleeping it off in your car, you will be charged with DUI! Many people believe that in order to be charged with Driving Under the Influence, you must be in the driver's seat with the car in motion on a public road. This is far from true! The police can charge you with Driving While Intoxicated based on presumptive operation, either you were going to drive the car while intoxicated or you drove the car to the place they found you then decided to stop and sleep it off. Presumptive operation can be based on a vehicle being parked across multiple spaces as if the driver was impaired, being the only one in the vehicle with no other possible driver, approaching your car with keys on your person, starting the car to stay warm in the winter and a host of other surprising reasons. As an example, on July 3rd, 2013 a fifty-three year old Bayonne resident was found sleeping behind the wheel of his automobile in a Quick Check paring lot. When asked by the police officer to step out of the car the man dropped a small package of an unknown substance, which was later found to be heroin. The man was charged with both possession of a Controlled Dangerous Substance (CDS) in a Motor Vehicle, as well as DUI. Under New Jersey law the definition of operating a vehicle is extremely broad to include more than simply driving that automobile, as many residents think. Dating back almost fifty years the courts have made monumental decisions in the matters of sleeping intoxicated drivers behind the wheel of a car, such as State v. Baumgartner, 21 N.J. Super. 348 (App. Div. 1952). That case made it clear that when an operator of a vehicle is found sleeping behind the wheel there are a number of situations that can result in a DUI charge of the driver. As in Baumgatrner, this Bayonne man was charged with a DUI due to the fact that he was found in a parking lot, one in which he stated was not in earlier. The man had a blood alcohol content (BAC) over the legal limit and it was then deduced, not observed, that the man had driven to that location under the influence of alcohol. DUI/DWI in NJ will have a serious impact on your life and can have significant implications in related matters such as later personal injury or vehicular manslaughter charges. If you are charged with DUI in NJ you should seek an experienced attorney immediately to protect your rights. For more information on driving under the influence, reckless driving or other serious municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. Be safe this 4th of July and if you drink, don't drive! DUI, DWI, Driving while intoxicated, driving under the influence, drug charges, CDS, CDS in a motor vehicle, Controlled dangerous substance, alcotest, BAC, blood alcohol content

Some Still Say Breathylizer and Alcotest is Already On The Way Out

The Alcotest device which replaced the Breathylizer for driving under the influence (DUI) testing in NJ is already on the way out. The Alcotest was introduced in the late 1990's and was subject to substantial litigation regarding its reliability by 2005. In 2008, the NJ Supreme Court decided State v. Chun and set forth the standards under which the Alcotest could be considered reliable in NJ. Now, software updates to the device as mandated by the Chun court are not available and the online database of readings from the device is corrupt. The device's manufacturer, Draeger Safety Diagnostics, has decided it will no longer employ software developer Ayoka Systems to correct software issues and eliminate issues causing data corruption. Additionally, Draeger will cease to warranty the device in 2016. Rather than employ Ayoka or another company to update the device manufactured by Draeger, the state has opted to find a replacement device for the Alcotest by 2016. Although the Chun court did not indicate Alcotest data from machines without updates would necessarily be corrupt, there are substantial differences between the raw data and the database results. Notably, exceptional results found in the raw data are apparently filtered out by the database. This leaves substantial room to challenge NJ Driving While Intoxicated charges in which the Alcotest is the state's primary evidence. Currently, there is a motion pending regarding the database which may result in a hold on the resolution of DWI cases for a substantial period of time depending on the results of the motion and subsequent challenges relating to reliability of the device and litigants' rights. DUI/DWI in NJ will have a serious impact on your life and can have significant implications in related matters such as later personal injury or vehicular manslaughter charges. If you are charged with DUI in NJ you should seek an experienced attorney immediately to protect your rights. For more information on driving under the influence, reckless driving or other serious municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.