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DWI Breath Test and Women Over Sixty

Posted by Carmine R. Villani | Jul 20, 2012 | 0 Comments

Breath Test

If you are taken into custody on suspicion of drunk driving in New Jersey, you will be asked to submit to a breath test at the police station. There can be several valid reasons why you may have trouble doing so. However, under NJ law, if you do not successfully provide two breath samples to the police, you will be charged with refusing a breath test. The charge of refusal comes with penalties similar to a DWI, and most often you will be issued citations for both DWI and refusal if you fail to blow.

Common Reasons a Breath Test Isn't Completed

If you were involved in a car accident at the time you are suspected of DWI and you have suffered injuries requiring medical attention, you will be taken to the hospital rather than the police station. There, you will be given a blood test in which the police will request your blood alcohol content (BAC) level.
Another problem some drivers have when being asked to provide breath samples occurs when they have trouble providing a big enough sample of their breath. It is required that you provide a sample of 1.5 liters for at least 4 1/2 seconds for each test. If you cannot due so, whether it is due to lung capacity or because you cannot catch your breath due to crying, the officer will allow you a few attempts before issuing a charge of refusal. The test can be given to an individual a maximum of eleven times if the sample is continually terminated due to lack of minimum volume requirements.

How a DWI Breath Test is Performed in NJ

If you are physically able to take the breathalyzer, the test will be conducted at the police department and the machine will record your BAC levels. The Alcotest® is the breathalyzer device used in New Jersey to measure the BAC of suspected drunk drivers.
In order for a breathalyzer test to give an accurate reading of a person's blood alcohol level, it has to measure the overall blood alcohol concentration in their system. A breath that comes from deep in the lungs will have a different alcohol level than breath that comes merely from the mouth. The reason NJ requires 1.5 liters over 4.5 seconds is to ensure that the machine takes a fair sample of the person's blood alcohol concentration. If the sample is not given for at least 4.5 seconds, it will not be an accurate reading. The failure to provide an accurate sample through a breathalyzer after multiple attempts can result in a charge of refusal, even if not done purposely.

Breathalyzer Exception for Women Over Sixty Years Old

New Jersey law does acknowledge that women age sixty and older can experience difficulty meeting the breath test sample requirements and, as a result, a woman over sixty-years-old is only required to submit a sample of 1.2 liters. Women over sixty can have physical difficulty blowing enough air to record an accurate sample by the Alcotest® 7110 device. For this reason, the New Jersey Supreme Court has directed that the instrument be reprogrammed so that a smaller breath sample of 1.2 liters could be taken from a woman over 60 years old. If this reprogramming is not done, the court ruled in State v. Chun that it would be unfair to prosecute women over the age of sixty on a refusal charge.

Call an Experienced DWI Refusal Attorney

If you have been charged with a DWI or refusal, you need to call an experienced New Jersey DWI defense attorney to protect your rights. Partner Carmine R. Villani, Esq. has a wealth of experience in New Jersey drunk driving defense having served as municipal prosecutor and municipal public defender in numerous municipalities in Ocean County and Monmouth County throughout his long legal career.  Contact the experienced NJ DWI defense attorneys of Villani & DeLuca for a free initial consultation by calling (732) 709-7757 today!

About the Author

Carmine R. Villani

Founding partner, Carmine Villani, Esq. is a former municipal prosecutor with over three decades of experience in Criminal and DWI Defense.


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