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NJ DUI/DWI Law – When a Different Police Officer Administers the Breath Test

29
Nov
2009

by in DWI Defense

Frequently in New Jersey, when a DWI/DUI suspect is taken into custody, a different officer then the one making the arrest gives the Alcotest (breathalyzer) breath test. Sometimes the arresting officer has other duties to attend to or is not a qualified operator of the machine. This is generally permissible.

However, there are other situations where one officer observers the suspect for the required 20 minutes prior to the administration of the breath test (previously covered on this blog) and then a different officer actually gives the breath test. These so-called “hand-off” cases should be fought aggressively. That is why is is vital to retain an experienced criminal defense/DWI attorney.

Simply put, the same officer that administers the Alcotest must also personally observe the test subject for 20 minutes prior to the administration of that test. State v. Nucifora, December 30, 2008 (Law Div.). State v. Chun, 194 N.J. 54, 79 (2008). It should be noted that Nucifora is an unreported case with no real precedential value.

“Operators” must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. Moreover, the operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person’s mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person’s mouth, the operator is required to begin counting the twenty-minute period anew.”

[Id. at 79. (emphasis added)].

See also id. at 140 (noting that the operator’s responsibilities include “observing the subject to ensure that twenty minutes have passed and to be certain that the subject has neither swallowed nor regurgitated any substances during that time that would influence the tests results. . . .”).

The Chun Court further explained:

For Crawford purposes, we begin by noting that the parties agree that, unlike the breathalyzer, the Alcotest is not “operator-dependent,” meaning that the device is not subject to influences from the operator. Instead, the record demonstrates that the operator will play a relatively lesser role here than has been the case in the past. His role [the operator’s] now consists of observing the subject to ensure that twenty minutes has passed and to be certain that the subject has neither swallowed nor regurgitated any substances during that time that would influence the test results; inputting and verifying the accuracy of the identifying information needed to start the sequence; changing the control solution if the machine alerts him to do so; attaching a new mouthpiece; reading the instructions about how to blow into the machine; observing the LED screen and following its prompts; and observing the subject to ensure that he or she actually provides a sample.

[Chun, 194 N.J. at 140].

The same officer who administers the Alcotest must also personally observe the subject for the twenty minutes preceding the administration of the Alcotest. Nucifora, supra; Chun, 194 N.J. at 79 . As the Law Division held in Nucifora: “What is clear … is that our Supreme Court in two (2) different places in Chun indicates that the person who administers the Alco test [sic] must observe the testee [sic] for twenty (20) minutes immediately prior to the actual test.” The Nucifora court futher noted that this is a “bright line” rule.

If the officer who observed you does not have a valid Alcotest qualification card, this is yet another argument you may be able to raise. For a free evaluation of your 20 minute rule DUI defense case, call a Freehold-based criminal defense attorney for a free consultation.

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