Being charged with a DWI, DUI or breath test refusal is unfortunately a rather common occurrence experienced by over 24,000 drivers in New Jersey each year. The backlash created by years of news media covering horrific tragedies involving drunk driving related accidents has led to very strict laws with severe consequences for even a first time drunk driving offender.
For close to 40 years, the State of New Jersey had used the Breathalyzer® test to evaluate a person's blood alcohol concentration (BAC). For the past decade, many New Jersey municipalities began phasing out the Breathalyzer® in favor of new breath test equipment; the Dräger Alcotest® 7110 which can measure BAC with better accuracy. Villani & DeLuca, P.C. partner Carmine R. Villani, Esq. is a former municipal prosecutor and one of less than 50 New Jersey attorneys trained by Dräger as an Alcotest® operator. Mr. Villani received the same training offered to Police Officers and New Jersey State Troopers in the operation of the BAC testing equipment.
The Science Behind The Dräger Alcotest® 7110
The Alcotest® 7110 is now used throughout most municipalities in New Jersey. The training on the instrument's internal workings and the proper testing procedures is crucial in identifying weaknesses in the State's case against you and will lead to the most effective defense. The Alcotest® 7110 calculates your BAC through the use of two different measures of analysis. The Dräger Alcotest® 7110 captures the breath sample of the accused in a chamber where the device uses infrared light to calculate the BAC based on energy absorption. The second part of the test takes part of the breath sample from the infrared chamber and applies voltage to oxidize the alcohol. The oxidation creates electricity which the Alcotest® measures to determine the amount of alcohol in the accused's system. The New Jersey Courts consider this test to be a reliable measure of the blood alcohol concentration in a person's body. The device requires careful calibration, with a period of at least 20 minutes between calibration and use. The instrument is extremely sensitive to heat, environmental conditions, and strict adherence to the procedures have been established by the New Jersey courts. The Alcotest® sensitivity and calibration will be scrutinized by your attorney and if he or she determines that the machine did not operate under the required conditions this could give your attorney the means to have the evidence suppressed.
What Is The Legal Limit? Understanding Your BAC Levels
Blood alcohol concentration (BAC) is one major factor in determining whether you are considered legally intoxicated. The judge in your case will take into consideration your BAC reading at the time of your arrest in order to determine your sentencing for your DWI conviction. The legal limit is a BAC of 0.08%. BAC results in this legal limit will result in the minimal penalties. As your BAC increases the more costly your sentencing will become.
For a first time conviction for drunk driving in New Jersey, it will constitute a loss of your driving privileges for up to one year, fines of up to $500, additional penalties, additional surcharges, Intoxicated Driver Resource Center (IDRC) class, and possible jail time. For those who had a BAC greater than .15% you will be required to install an ignition interlock device during your license suspension plus 6-12 months after your license has been reinstated. For a second offense or greater the punishment increases exponentially.
The Steps Leading Up To The Dräger Alcotest® Breath Test
Each driving while intoxicated case rests on specific facts. The most common drunk driving charges result from standard motor vehicle stops for minor infractions such as speeding, failure to maintain your lane or failure to observe a traffic safety device. Once an officer has the probable cause to stop a vehicle for a motor vehicle offense, they will make observations of the driver and the driver's conduct. Often the officer will outline in the police investigation reports that, upon approaching the vehicle, the officer smelled or detected a “strong odor of alcohol” coming from the vehicle compartment or the breath of the operator. This is probably one of the most frequently repeated statements and appears in almost every police report involving a DWI, DUI or refusal charge.
The officer will then describe any factors considered to determine that a driver has been drinking. This often includes items like glassy eyes, slurred speech and fumbling hands while providing his or her credentials. Many individuals offer information to the officer advising that they had been drinking and may state that they had one or two drinks. A statement to an officer or trooper that you had any alcohol will almost certainly result in the officer requesting that you get out of the vehicle and perform field sobriety tests. These tests are used by the officer to establish probable cause for a driving under the influence (DUI) arrest.
Once an officer determines that you may be under the influence of alcohol, you will likely be handcuffed and taken to the local police station for the administration of the Alcotest® 7110. A trained Alcotest® operator will administer the test after a twenty minute period of observation. If the breath test results read 0.08% or greater, you will be charged with driving while intoxicated. Generally, upon being charged with DWI the officer will also issue a summons for reckless driving as well as any other motor vehicle violations which the officer may have observed.
What If I Refuse To Take A Breath Test After A Drunk Driving Stop?
In New Jersey, drunk driving is a very serious breach in the law and the penalties for a convection are very costly. When you applied for a New Jersey State Drivers Licenses you gave your "implied consent" to a breath test at the time of your arrest for drunk driving. As long as the arresting officer has probable cause for your detainment, you will be asked to comply with a breath test. The person administering the test will inform you of your right to a refusal and the penalties faced if you refuse to take the breath test. The police can't physically force you to submit to a breath test, but there are harsh consequences if you say no. For a first offense for refusing to take a breath test, you face the loss of your drivers license for up to one year and face fines up to $500, plus $3,000 in surcharges. Even without the breath test you can still be charged with a DUI based on physical evidence gathered by the police. We strongly recommend that you comply with the police in regards to a breath test.
Challeging A Breath Test Refusal In New Jersey
Breath Test Refusal Charge - N.J.S.A. 39:4-50.2
DWI Breath Testing In New Jersey
What Is The Legal Limit in New Jersey?