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Saturday, May 19, 12:32 pm
Superior Court in Atlantic County Invalidates Alcotest Breath Test Results and Now Alcotest Results in Robbinsville and Hamilton May be Invalidated
In State v. Chun, the New Jersey Supreme Court upheld the reliability of the State’s Alcotest, which is used to measure a driver’s presumed blood alcohol level. While the test is discussed at length under the DWI/DUI section of this web site, it is important to understand that the validity of the test was upheld in connection with the use of the Ertco-Hart temperature probe. At some point, both Robbinsville and Hamilton Township Police Departments switched to the use of a different temperature probe, the Digital NIST Temperature Measuring System. Interestingly, the Robbinsville Police Department did not even disclose the use of the unapproved probe until it published its Alcotest records from December 2010 to present. In light of the Court’s ruling below, the validity of both Robbinsville and Hamilton Township’s Alcotest results are in serious question. If you have been charged with a DWI/DUI in any municipality, especially in eith Robbinsville or Hamilton, it is important that you call for a free consultation to discuss the possibility of having the Alcotest results suppressed.
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The Law Offices of Edward Harrington Heyburn, PC is a full service law firm focusing on Personal Injury, Workers Compensation, Municipal Court Matter, Driving Under the Influence/Driving While Intoxicated, Traffic Matters, Domestic Violence, Family Law as well as DYFS Removal Cases.
Press of Atlantic City reported:
MAYS LANDING – A Superior Court judge’s ruling could negate drunken-driving arrests throughout Atlantic County, say area defense attorneys and municipal prosecutors.In overturning a driving under the influence conviction this week, Judge Max Baker found that only one brand of thermometer probe should be used to determine the reliability of the breath-test machine.The decision – which covers the entire county – could throw out the results of any machine using another probe, lawyers say. State Police, who regulate the Alcotest breath test, could not immediately say how many police departments in Atlantic County use the component cited by the judge as unreliable. “Theoretically, the effect is huge,” said Michele Verno, a municipal prosecutor in four Atlantic County towns who said she had not yet read the ruling. “Because the temperature probe is the indicator of reliability for the machine, if that’s called into question, then so are the results.” “This is binding in every municipality in Atlantic County,” said Alan Lands, the Pleasantville attorney who argued the case. He said the case cannot be appealed because his client has now been acquitted, and to try him again would be double jeopardy.
Atlantic County Prosecutor Ted Housel said he could not comment on the case until he has read the ruling, but municipal prosecutors in the county will look to him in determining what happens next. “I’m sure Mr. Housel will evaluate the issue and give a directive on how to handle future prosecutions in these matters,” said Christopher Lipari, the Galloway Township prosecutor who got the conviction that Baker overturned this week. In that case, Emilio Rivera was pulled over Dec. 31, 2009, while driving on the Garden State Parkway. He was eventually administered the Alcotest at the Bass River Barracks, and his case heard in Galloway Township Municipal Court. But after his conviction, attorney Alan Lands appealed on several issues, including the probe manufacturer and that the room where the test was given had not been cleared of all other electronic equipment, as mandated so as not to interfere with the results.
When the state Supreme Court ruled the Alcotest could replace the Breathlyzer in police departments throughout the state, it named just one manufacturer for the thermometer probe, Baker noted. But instead of using the Ertco-Hart digital measuring system, some departments use one manufactured by the Control Company. Testimony in another trial concerning the two probes indicated Control is used because it’s much cheaper, costing about $300 compared with $2,000 for the Ertco-Hart that also requires annual recalibration for about $700. The Control probe is replaced rather than recalibrated. Baker found that the higher court mentioned Ertco-Hart several times in its ruling. “I don’t believe that the Supreme Court left out the words ‘or similar devices’ simply because they overlooked it,” he said. “I think they left it out for a particular reason.”
But even if the words had been included, Baker said the state did not prove that Control’s probe is comparable. While Ertco-Hart is independently tested, Control tests its own equipment. “If find that that is a critical error,” Baker said. Evan Levow, who argued the state Supreme Court case, said he was glad that Baker detailed why the Control Company’s probe should not be an alternative. “Not only do you have to meet these standards, it has to be verified independently,” he said. Levow said it’s likely another company’s probe will eventually be approved. Levow said that wouldn’t be a problem, as long as the same standards are applied. “It looks like Judge Baker was trying to follow the Supreme Court’s order,” said John Menzel, who also argued the Supreme Court case. Months of hearings on the Alcotest named only one probe, the Ertco-Hart, he said. “Ertco-Hart was not litigated all that much because it’s a fine piece of equipment,” Menzel said. “The use of the Control Company was never examined, and there was never any consideration of that device (in the case).” The State Police could not immediately comment on which municipalities have the Ertco-Hart and which have replaced that with the Control Company’s probe. Control did not return a request for comment. If the Alcotest results are lost, that does not automatically throw away any DUI cases in the county, Verno said. The prosecutor still would have the field-sobriety test and the officer’s testimony. “It doesn’t necessarily negate all previous and future cases,” she said. “But it does create some significant issues.”
Atlantic County isn’t the only one calling the probe into question. The appellate division heard arguments Tuesday on two Monmouth County cases in which the judge sided against Control. A judge in Mercer County found the probe was a reliable alternative.”Departments all over the state are going to be coming up on all sides of this issue until the appellate speaks,” said Menzel, who also represents one of the Monmouth County defendants. “There is no consensus on this issue statewide.”
New Jersey Supreme Court refuses to hold that a prior refusal constitutes a DWI for sentencing purposes!
The New Jersey Supreme Court granted certification to resolve the conflict between the Appellate Division’s decisions in DiSomma and in this matter. 202 N.J. 43 (2010).
HELD: Defendant Ciancaglini’s conviction in 2006 for refusing to take a breathalyzer test does not constitute a prior conviction for purposes of determining her sentence for driving while intoxicated in 2008.
1. To interpret a statute, courts look to the Legislative intent, examining first the plain language of the statute. If the statute is clear on its face, courts enforce it; if it is ambiguous or open to more than one meaning, courts may consider extrinsic evidence, including legislative history and committee reports. Any reasonable doubt concerning the meaning of a penal statute must be strictly construed in favor of the defendant. (Pp. 10-11)
2. Although N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.4 are both part of a statutory complex designed to rid the highways of drunk drivers, each is a separate section with a different, albeit related, purpose, and each has different elements. Under the DWI statute, N.J.S.A. 39:4-50, operating a motor vehicle while intoxicated subjects the defendant to penalties that are based on the number of prior offenses the defendant has committed. For a first offense in which the driver’s blood alcohol content is .10% or higher, the sentence includes a license suspension of 2 seven months to one year, a fine, and a jail term of not more than 30 days. For a second violation, the sentence includes a two-year license suspension, a fine, and a jail term of up to ninety days. For a third or subsequent violation, the sentence includes a ten-year license suspension, a fine, and a jail term of 180 days. However, the DWI statute contains a “step-down” provision that states that “if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second conviction for sentencing purposes.” The refusal statute, N.J.S.A 39:4-50.4a, is similarly structured with penalties based on whether the conviction is the driver’s first, second, or third or subsequent offense. It requires the revocation of the right to operate a motor vehicle by any driver who, after being arrested for DWI, refuses to submit to a breathalyzer test. The length of license suspension for refusal mirrors the length of the license suspensions for DWI. However, no custodial sentence is authorized for refusal convictions. (Pp. 11-14)
3. Until the Appellate Division in this case reached the opposite conclusion, DiSomma represented the controlling case for sentencing DWI offenders with a prior refusal conviction. In DiSomma, the Appellate Division examined both the DWI statute and the refusal statute and determined that their provisions were intended to be separate.
Concluding that a prior refusal conviction cannot serve as the basis to enhance a subsequent DWI conviction, the defendant, who had a prior conviction for refusal, was sentenced as a first offender after his DWI conviction. Since DiSomma, there have been no legislative revisions to the DWI or refusal statutes suggesting an integration of refusal convictions into DWI sentencing. Although a 1997 amendment to both the DWI and refusal statutes was designed to ensure that DWI and refusal convictions in other jurisdictions qualify as prior offenses under the respective sections in New Jersey, the Legislature never endeavored to provide that a prior refusal conviction could be treated as a prior DWI. (Pp. 15-17)
4. The DWI statute contains no reference whatsoever to the refusal statute, and nothing suggests that the references to prior violations in the DWI statute’s lists of penalties are meant to refer to anything beyond DWI convictions. Without any statutory cross-reference, or similar expression, the most natural reading of the DWI statute suggests that the “prior” violations described in N.J.S.A. 39:4-50 are meant to refer only to the DWI section in which they are contained. Such a reading is consistent with the well-established principle that penal statutes must be strictly construed. (Pp. 17-18)
5. While the record is not clear as to whether Ciancaglini’s 2006 refusal conviction was or was not incident to an acquittal of DWI, it cannot be reasonably suggested that someone convicted of refusal when found not guilty of DWI can be treated as if he or she were convicted of the DWI offense. If the Legislature wanted to treat a refusal conviction as an enhancer for SWI, even after an acquittal of DWI, it would have to do so in clearer language. (P.
18)
6. The Court determines that it need not decide in this case whether a person can twice take advantage of a stepdown under N.J.S.A. 39:4-50 because Ciancaglini’s refusal conviction cannot be considered a prior DWI violation for enhancement purposes. As such, she is not precluded from the benefit of the step-down since her first DWI conviction in 1979 was more than ten years prior to her second, the 2008 DWI conviction. (Pp. 19-20)
The judgment of the Appellate Division is REVERSED and the Law Division’s sentence is REINSTATED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS join in JUDGE STERN’s opinion
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DWI Conviction in NJ reversed because State failed to turn over Alcotest repair logs
On August 31, 2010, in an unpublished opinion, the Superior Court of New Jersey Appellate Division reversed a lower court conviction for DWI/DUI where the State failed to turn over historical data and repair logs for the police Alcotest. State of New Jersey v. Maricic. While these documents are not foundational documents necessary for the State to obtain a conviction, they are documents that would challenge the reliability of the Alcotest. This case begs the question of what happens when the State says that they do not have repair logs. For a long time, the State has been able to shirk its responsibility to turn over repair logs by denying that any such documents exist. Now that the appellate division says Defendants are entitled to such documents, the fight to show that the State fails to properly maintain repair logs in on!
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Appellate Division holds any competant witness can conduct DWI’s 20 minute observation period
For a short time DWI Defense Attorneys thought that there was hope that the Courts would exclude alcotest results when the police failed to have the officer conducting the test make a 20 minute observation of the suspect prior to adminstering the test. The Appellate Division quashed that hope in State v. Ugrovics. The court held, “ Consistent with the underlying principles articulated by the Court in Chun, we hold that the State is only required to establish that the test subject did not ingest, regurgitate or place anything in his or her mouth that may compromise the reliability of the test results for a period of at least twenty minutes prior to the administration of the Alcotest. The essence of this requirement is to ensure that the test subject has been continuously observed during this critical twenty-minute window of time. The identity of the observer is not germane to this central point. The State can meet this burden by calling any competent witness who can so attest.” For now, if you burb before the Alcotest, you better let someone know or suffer an abnormially high reading.
