Challenging a Breath Test in a New Jersey DWI Case

A breath test result often appears to be the most significant evidence in a New Jersey DWI matter, yet its admission in court is not guaranteed. The State bears the burden of proving that the testing device functioned correctly, the operator held the necessary qualifications, and that all required protocols were maintained throughout the process. If you fail to contest these elements, you might lose the ability to have the breath test excluded from your case.

Steps to Challenge Breath Test Evidence

1. Enter your plea and set a scheduling order. Your initial appearance in municipal court is the time to enter a plea and establish a calendar for upcoming proceedings. You must raise any motions to exclude evidence before your trial begins, as delaying this step could lead to a waiver of your objections under Rule 7:5-2, unless the judge allows a late request for good cause.
2. Request all necessary discovery items. Make a formal request for discovery pursuant to New Jersey Court Rule 7:7-7 to obtain all relevant items. Ask for police reports, video footage, the Alcohol Influence Report, operator credentials, and calibration documentation. Simply requesting standard reports might not yield the technical data needed to analyze the validity of the breath test results.
3. Review calibration records for the device. Verify that the machine was calibrated correctly by reviewing the required documentation. For the Alcotest 7110 MKIII-C, check the latest calibration report, the New Standard Solution Report, and the Certificate of Analysis to ensure the State has met the foundational requirements for admissibility established in State v. Chun.
4. Confirm the 20-minute observation period. Confirm that the officer observed you for a minimum of 20 minutes before taking your breath sample. The purpose of this time is to ensure you did not consume anything, vomit, or place items in your mouth that could alter the results. Inspect police video and timestamps to see if the observation was continuous or if an interruption occurred that mandated a restart.
5. Check the legality of the stop and arrest. Assess whether the initial pull-over and subsequent arrest met constitutional standards. Police officers are required to have a valid reason for pulling a vehicle over, such as observing a traffic infraction or other criminal conduct, and must possess probable cause before making a DWI arrest. If the officer lacked these justifications, you may have grounds to argue for the exclusion of evidence obtained thereafter.
6. Submit a written motion. If your review uncovers issues with the testing process or the stop, file a formal motion to suppress the evidence. This document should clearly state the legal reasoning for why the court should exclude the breath test result from your case.
7. Attend the evidentiary hearing. If the court finds there are factual disagreements regarding the evidence, it may schedule a hearing. During this time, you may present testimony, video, or other documentation to support your claim that the results should be thrown out.
8. Evaluate the case status after suppression. Understand that even if the court excludes the breath test, the State may still proceed with the case. The prosecution can attempt to prove the DWI charge by relying on other observations, such as your driving patterns, speech, field sobriety test performance, or odor of alcohol. The final outcome depends on what evidence remains after the breath test is removed.

For the full detail, including the exceptions and additional requirements for challenging evidence, see the full version on the firm's site.

About the author

Rachel Kugel leads The Kugel Law Firm, which devotes its practice to DWI defense in New York and New Jersey. A member of the National College for DUI Defense and the DUI Defense Lawyers Association, she has been invited to speak on DWI defense by the New Jersey State Bar Association, Garden State CLE and Avvo Lawyernomics.

Where to find us in New Jersey

The Kugel Law Firm is at 1 Gateway Center, Suite 2600, Newark, NJ 07102, and the phone is (973) 854-0098.

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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.