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DWI Charge Reduced Because of Tongue Piercing

Posted by Carmine R. Villani | Jul 23, 2012 | 0 Comments

Tongue Piercing Affected DWI Breathalyzer Results

A New Jersey woman was charged with drunk driving and provided a breath sample that was three times higher than the legal limit.  Kara Nelson, who registered a 0.21% blood alcohol concentration (BAC), was able to argue that the BAC reading result was invalid because New Jersey law requires that people have no foreign materials in their mouth when they take the BAC test.
Nelson had a pierced tongue stud in her mouth during the test, which she argued as a main factor attributing to the high BAC.  As a result of the invalidation of her BAC results, Nelson was not forced to the mandatory higher fine and 7 month loss of her driver's license.  Instead, Nelson received the lesser sentence of 3 months loss of her driver's license and lower fines for a lower tier DWI.

Breathalyzer Test Results Not Required for DWI Conviction

A judge may still find an individual guilty of drunk driving based merely on field sobriety tests given by police.  Some of the field sobriety tests the police may use reciting the alphabet in a requested order, counting out loud, a finger to nose test, balancing with eyes closed, and walking a straight line.  The field sobriety tests may or may not be recorded by videotape depending on the availability of the equipment.  Most drunk driving cases processed by New Jersey State Troopers are videotaped.

Use of the Alcotest Breathalyzer in New Jersey

Breath Test

Upon arrest, based on probable cause that the person was driving while intoxicated, the accused drunk driver will be transported to the police station to provide a sample for the Alcotest.  The Alcotest is the current system used in New Jersey to test a suspected drunk driver's blood alcohol concentration.   The Alcotest, consisting of a keyboard, an external printer, and the testing device itself is positioned on a table near where the accused drunk driver is seated.

20 Minute Observation Required Before BAC Testing

According to specific New Jersey law, the law enforcement officer operating the Alcotest must observe the defendant for twenty minutes before collecting a breath test sample.  The purpose of this rule is to avoid an overestimated reading due to residual effect of mouth alcohol.  The software is programmed to prohibit operation of the device before the passage of 20 minutes from the time entered as the time of the arrest.  The operator or another present police officer must also observe the person arrested for the required 20 minutes to ensure that no alcohol has entered the person's mouth while waiting to submit to the breath test.
Additionally, if the charged person swallows anything, throws up, spits up, or if the operator notices the individual is chewing gum or tobacco in the person's mouth, the operator is required to start over counting another 20 minute period.

Police Should Confirm No Foreign Objects in the Drunk Driver's Mouth

The local police officer or State Trooper about to conduct the Alcotest must confirm that the suspected drunk driver has no foreign objects in his or her mouth.  A foreign object in the individual's mouth has the possibility to cause a high blood alcohol concentration result.  The law enforcement officer should confirm there is no gum, chew or breath mint in the person's mouth during the 20 minute observation period before the test is administered.
Dental implants, retainers or dentures could also cause an inaccurate BAC reading to be produced.  The law enforcement officer should therefore also confirm that the person does not have a retainer around their teeth.  The presence of foreign objects in someone's mouth has the possibility of absorbing and retaining alcohol and other chemicals that may cause an inaccurate reading.

Contact an Experienced DUI or DWI Attorney in New Jersey

If you have been charged with a DWI or DUI in New Jersey, you need to call an experienced New Jersey criminal defense attorney to protect your rights. Partner, Carmine R. Villani, Esq. has a wealth of experience in New Jersey criminal defense having served as municipal prosecutor and municipal public defender in numerous municipalities in Ocean County and Monmouth County throughout his 20+ year legal career.  Contact the experienced NJ criminal defense attorneys of Villani & DeLuca, P.C. for a free initial consultation. Call (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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