It must be noted that a DWI and refusal to submit to a breath test are traffic violations in New Jersey, not criminal offenses. However, that doesn't diminish their danger and the severity of the penalties.
Errors Can be Made With the Breathalyzer
Even with the penalties associated with a DWI arrest and conviction, the defendant has rights and that includes being tested accurately with the breathalyzer. There are common errors that can occur when a breathalyzer test is being administered and they can result in the charge of DWI being dismissed.
In order for the test to be deemed valid, the following factors must be in place: the device must be in working order; the operator of the machine must be certified; and the operator of the machine must have adhered to the proper procedure to take breath samples from a DWI suspect. If any of these aspects of the test were not adhered to or there were mistakes made, then the evidence will be ruled inadmissible.
Proper Working Order for a Breathalyzer
Under New Jersey law, there must be documents verifying that the breath test machine was in proper working order at the time of the test. The documentation essentially provides a paper trail going back six months detailing the machine's operation. If the machine was not in correct working order at any time, the defense attorney can find that information and use it to have the evidence ruled inadmissible.
The device must have all the proper inspections from before and after the defendant was given his or her test. There are also solutions that will accurately gauge the machine's ability to test the alcohol reading. Records of the machine's solution changes are also required to be provided to the defense attorney in a DWI case.
The Validity of the Machine Operator's Card
The officer administering the test must be certified to do so. The certification is valid for the remainder of the current year plus the next two calendar years. If the card has expired, the operator is not legally allowed to give the test. The operator's certification card is only valid if it is in a form that has been approved by the State of New Jersey, has the name of the officer on it and it is appropriately dated.
Proper Procedure to Administer the Test
In order for a breath test to be administered legally and be admissible in court, there are several factors that must be considered. The defendant must have been observed for twenty uninterrupted minutes prior to the test. The observer does not have to be the operator of the breath test.
After the observation, the machine must be calibrated by the blank air test. First, the machine is turned on and reaches a temperature of around 93 degrees Fahrenheit. This is accomplished with a solution that is meant to simulate the breath of a human being. After that, the air in the room is sent through the machine to dispatch the solution.
A mouthpiece is then inserted into the device and two samples deemed to be usable must be completed. If a person tries eleven times to give a sample and two are not usable, then this is recorded as a refusal. Software is then used to establish that accurate readings have been taken.
Contact an Attorney About Your DWI Charge
If you have been charged with DWI and there is the possibility that any of the above-listed criteria weren't followed to ensure errors were not made with your breath test, you may be able to have the charges dismissed. It is highly advised that you contact an experienced DWI lawyer in New Jersey to represent you in the defense of your case.
The attorneys of Villani & DeLuca in Point Pleasant Beach, New Jersey can assist you in defending against a DWI charge that occurred in Monmouth County or Ocean County, New Jersey. If you are from towns such as Long Branch, Brick or Toms River and you are facing charges for DWI, it is important to have qualified legal representation. Call Villani & DeLuca to discuss your case today.