Prerequisites. Almost all drunk driving charges arise from arrests which are considered warrantless seizures. Seizures made without an arrest warrant are presumed to be unreasonable. Thus, the State must establish that the officer had probable cause to (a) stop you, and (b) arrest you for drunk driving. Probable cause is a reasonable basis to act, usually involving a suspicion that you violated the law. The State must establish probable cause by a preponderance of the evidence.

Elements . Once these prerequisites are established, the court can consider the elements of the offense. To convict you of drunk driving, the State must prove beyond a reasonable doubt that you:

• operated or intended to operate

• an operable motor vehicle

• while either

• under the influence of liquor

• or with an alcohol concentration of 0.08 per cent by weight of alcohol in your blood or breath.

Breath Tests. Breath testing is by far the most common way of testing for blood alcohol content [" BAC "]. The Breathalyzer is by far the most commonly used machine to test breath in New Jersey.

What the State Must Prove to Show a Breath Test Is Reliable

Before the court can hear what breath test results are, the State must establish certain things:

• The machine was working properly.

• The officer who operated the machine was certified by the Attorney General to use it.

• Radio frequency interference did not affect the machine.

• The test was given correctly.

• Chemicals in glass ampoules used in the test were of the proper amount and mix.

Documents All Defendants Who Gave Breath Samples

Should See in Discovery Before Deciding What to Do

• Police copies of the Summons and Complaint

• Drinking-Driving Report, including

• an observations check-off sheet and

• a narrative of investigation

• Alcohol Influence Report, including

• chemical test information:

• full identification of the machine used

• the type of machine used

• the machine's manufacturer

• the machine's model number

• the time of tests were given

• test results

• a breathalyzer operational checklist

• Breath Test Instrument Inspection Certificates, which show results of periodic inspection of the machine:

• one dated before your breath test

• one dated after

• others from the year before your arrest

• one showing when this machine was placed in service

• Breathalyzer Operator Certification Card

• assay report for ampoule chemicals

• State Police certificate of analysis for breath alcohol simulator solution
documents you signed, if any

Additional Trial Preparation:

When to Hire an Expert

If a defect afflicts the breathalyzer or its operation, the defense may call an expert witness, often a factory trained breathalyzer technician formerly certified by the Attorney General as a Breath Test Coordinator Instructor with the New Jersey State Police. The New Jersey State Police opposes defense attempts to call presently certified Breath Test Coordinator Instructors as experts for the defense.

Consider hiring a medical doctor if you have a health problem that affects breath test results -- e.g., diabetes, hypoglycemia, asthma, fever, ulcers, hiatal hernia, and use of certain medications--or causes you to sway, stagger, have bloodshot watery eyes and droopy lids, fumble and move your hands slowly, and show other signs that may be mistaken for intoxication -- e.g., diabetes, hypoglycemia, inner ear and eye disorders, neurological deficits, and allergies.

 

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