In January 2005, the State of New Jersey started implementation of a new breath test program, rolling out the Alcotest 7110 MK III-C breath test machine, in different counties across the State. Implementation of this program follows 35 years during which the Breathalyzer Model 900 and 900A were used almost exclusively in performing breath tests to determine the content of alcohol in the blood of Defendants.
The significance of this change cannot be overstated, since by law, the State can establish a Defendant's intoxication simply providing an evidentiary blood test result of .08% Blood Alcohol Content, often referred to as a per se violation. In other words, the results of this test can, on their own, establish a Defendant's intoxication by virtue of level of Blood Alcohol Content shown.
Approximately three years ago, a hearing was conducted in Camden County Superior Court in the matter of State v. Foley, to determine the scientific reliability of the new device. While this Court determined that the Alcotest machine was
scientifically reliable, no Appellate Court considered the trial
court's findings, presenting a problem for implementation of the program outside of Camden County. Our office participated as co-lead counsel, representing one of the Defendant's in this matter.
As a result of the statewide implementation of the Alcotest
program, the scientific reliability of the device was challenged
again in a matter entitled State v. Chun. That challenge began in the Middlesex County Superior Court and was ultimately taken before the New Jersey Supreme Court. Upon direction of the Supreme Court, a hearing was conducted by Honorable Michael Patrick King as Special Master, where extensive testimony was provided to the Court as to whether the Alcotest device could be relied upon as scientifically reliable, so that breath test results could be used to determine the blood alcohol content and, therefore, the intoxication of the Defendant.
After Judge King's consideration of testimony and documents presented in Court, Findings of Fact were provided to the Supreme Court. These findings raised various questions involving the New Jersey Alcotest breath test program, while at the same time acknowledging the general scientific reliability of the device.
Subsequently, oral argument took place before the New Jersey Supreme Court as to these issues. The Supreme Court consequently determined additional information was needed from experts to evaluate the source code which operated the breath test device.
These reports are to be provided in the late part of 2007, with
the decision of the New Jersey Supreme Court to follow.
We have appeared as Amicus Curiae before the New Jersey Supreme Court in the Chun case.
Supreme Court Changes Plea Bargaining Rules
On July 1, 2005, amendments to guidelines for Operation of Plea Agreements in Municipal Courts in New Jersey were amended by the New Jersey Supreme Court. The most significant change prohibited prosecutors from plea bargaining refusal cases where the Defendant has been charged with DWI and Refusal, where these offenses are first offenses. While plea bargaining in refusal cases had been permitted by the Rules in the past, the Supreme Court apparently determined that it was necessary to change these Rules due to an anomaly in the Statute adopted by the Legislature, which went into effect in January 2004. This change created a new offense, where intoxication could be determined if a Blood Alcohol Content was less than a .10% Blood Alcohol Content, but equal to or more than a .08% Blood Alcohol Content. Since the Legislature also provided for a shorter suspension of only three months where the Blood Alcohol Content was less than .10% Blood Alcohol Content or where no Blood Alcohol Content was determined, the Court apparently perceived a problem with the Legislature's scheme to the extent that a Defendant refusing to take the breath test would be sentenced to a three-month suspension, while a Defendant providing a breath sample could be suspended from seven months to a year. At the same time, the Supreme Court Rule change provided that Prosecutor's could not plea bargain DWI cases where breath test results were .10% Blood Alcohol Content or higher to offenses where the three-month suspension could be applied.
Standard of Proof on Refusals Changed by the Supreme Court
While the Supreme Court implemented its amendment to the Guidelines for Operation of Plea Bargains in Municipal Courts, the Court made it more difficult for Prosecutors to prove the charge of refusing to submit a breath sample, in holding that the highest standard of proof, applied in criminal cases had to be applied. In the matter of State v. Cummings, the Court decided on June 23, 2005 that prosecutions for refusing to submit a chemical test after being arrested for Driving While Intoxicated, required the State to prove the statutory elements of the offense, by the standard of proof beyond a reasonable doubt. This decision is significant in light of the fact that the statute provides for a much less severe standard of proof, that being by preponderance of evidence. Prior to the Supreme Court's decision in Cummings, the State then, only had to prove that a Defendant refused to submit a sample of breath and that there was reasonable cause to believe that the Defendant had operated a motor vehicle under the influence of alcohol, by a preponderance of evidence. The term "preponderance of evidence" is often referred to as a standard where the State must only prove slightly more evidence than the evidence presented on behalf of the Defendant to meets its burden of proof. Under the new standard, the State must now establish by the most stringent standard of proof beyond a reasonable doubt, that all of the elements of the offense of refusing to submit a sample of breath for breath testing purposes were met. Consequently, the State's ability to prove a violation of this statute has become more difficult.
Legislature Expands Commercial Driver's License Suspensions upon DWI Convictions for Operation of Personal Vehicles.
In another new change, the New Jersey Legislature has adopted legislation amending existing laws concerning suspension of commercial driver's license privileges in DWI cases. Under the prior law, a conviction for DWI and a suspension of driving privileges where a personal motor vehicle had been operated, would not affect the status of the Defendant's commercial driving privileges. However, under the new law, if an individual loses his license for driving while intoxicated while operating his personal motor vehicle, a suspension of commercial driving privileges will also arise.
This suspension will, in most cases, exceed the suspension of personal driving privileges. The only exception to this rule is when the Defendant is found guilty of refusing to take the breath test and the charge of driving while intoxicated is dismissed. In that case, there may be no adverse affect on commercial driving privileges.
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