Blood Alcohol Tests

The Twenty Minute Breathalyzer Waiting Period

February 2, 2017 by EMJanzekovich

It is likely common knowledge that if you are pulled over and arrested for drunk driving, one of the ways the police may try to prove the charges against you is by making you take a breathalyzer test. The breathalyzer test is meant to measure your Blood Alcohol Content (BAC), and the legal limit for driving in New Jersey is under .08%

What many drivers do not realize, however, is that there are two potential breathalyzer tests that a police officer may use during a drunk driving investigation and arrest: the roadside breath test and a breathalyzer taken back at the police station. The roadside breath test is sometimes also called a portable breath test (PBT), and it is usually provided on a small handheld device that looks like an inhaler you blow into. It is not as accurate as the station test. For that reason, the PBT is only used to get an estimate of BAC and used to establish that the police officer has probable cause to conduct an official breathalyzer test at the police station. The results of the PBT are not admissible in court to prove drunk driving.

There’s another rule that many people do not know about. Once a drunk driving suspect is brought back to the police station, the police still cannot immediately administer the official breathalyzer test on the Alcotest 7110 machine.

20-Minute Observation or Waiting Period

According to the Supreme Court in State v. Chun, operators of the Alcotest 7110 machine must wait at least 20 minutes before collecting a sample from a person who has been arrested in order to avoid overestimating the readings due to the possibility of residual effects of alcohol in the mouth. In fact, the breathalyzer machine is programmed to prohibit the operation of the device before 20 minutes has passed from the time entered as the time of arrest.

During this time, the DUI/DWI suspect must be watched, uninterrupted, during this waiting time to make sure that no alcohol has entered the person’s mouth while he or she was waiting for the start of the testing procedure. According to another case, Romano v. Kimmelman, the government has the burden of proving that they adhered to this 20-minute observation period requirement. Additionally, if the person swallows anything or throws up or the police officer notices chewing gum or tobacco or any other foreign objects in the person’s mouth, the machine operator is required to start over the 20-minute waiting period.

Actual Observation Requirement

In order for the waiting period to be legally valid, police officers are trained that drunk driving suspect must be observed uninterrupted for 20 minutes. It is not enough that the person under arrest be in police custody, such as in the back of the police car in handcuffs, for that period of time. The proper procedure requires that the person actually be watched by the Alcotest machine operator for the entire period of time in order to avoid taking steps that could conceivably contaminate the breath sample.
Similarly, the police officer’s observation must be of the sort that makes it possible for the police officer to detect if contamination occurs. If the police officer looks away, he must be close enough to detect contamination by smelling it or hearing it. An officer who rides alone in the police vehicle with the DUI suspect must be able to pay attention to the suspect, free from road-related distractions, in order to spot the suspect throwing up or putting anything in his or her mouth.

Failure to Follow the Requirements

Because of the strict requirements of the rule, it is often the case that the government is unable to show that the 20-minute observation period was specifically followed. If the rule is not followed as demanded by the law, then an experienced drunk driving attorney will be able to challenge the results of the Alcotest, and may be able to have the results of the test suppressed so that it cannot be used in Court.

Because the law regarding BAC evidence is so complicated, it is important to always consult an experienced DWI/DUI lawyer if you or someone you know is pulled over and charged with drunk driving. An DUI attorney may be able to fight the charges against you or have the charges dismissed completely.

New Jersey DUI/DWI Lawyer Edward M. Janzekovich Knows How to Defend You if You Are Charged with Drunk Driving

A DUI/DWI charge for operating a motor vehicle will involve many complicated evidential issues. Such a charge can also result in severe penalties that affect you and your loved ones. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Blood Alcohol Tests, DWI - DUI, DWI & DUI Checkpoints

New Jersey DWI Attorney Discusses Auto Brewery Syndrome – Could it Be Responsible for Your DUI?

January 24, 2017 by EMJanzekovich

Auto-Brewery-Syndrome The consequences for getting a convicted of driving under the influence of alcohol or drugs in the State of New Jersey are potentially devastating. Even a first offense can result in jail time, loss of license, fines, and the potential loss of your ability to work or provide for your family and loved ones. If you have already been convicted of one or more prior DWIs, any additional offense will result in much more devastating penalties: mandatory jail, loss of license, and other increased punishments compared to the first offense.

But what if you have been unfairly convicted because of a rare medical condition?

Auto Brewery Syndrome is a rare medical condition that could make it appear as if you have been drinking and driving, even when you haven’t. Also known as gut fermentation syndrome, the condition has even been known to lead to unfair charges for operating a motor vehicle under the influence of alcohol.

What is Auto Brewery Syndrome?

Auto Brewery Syndrome is a rare medical condition in which intoxicating amounts of ethanol – the scientific name for drinking alcohol – is spontaneously made within a person’s body in their digestive system. It is potentially caused by having an unusually large amount of active yeast in the body – possibly brewer’s yeast, also known as saccharomyces cerevisiae, which is normally used to turn sugars into alcohol when making beer or other liquors. An excess of yeast in the gastrointestinal tract can sometimes lead to a person’s body turning into its own brewery – making alcohol from sugar inside the body and getting a person drunk even when they have not had any alcohol to drink.

Brewer’s yeast can be found in a great many places, including breads, wine and beer. Usually, it just passes through the body harmlessly. In very rare cases, it takes up residence in the intestines and can multiply, leading to Auto Brewery Syndrome. Although researchers do not know the exact cause for the condition, some speculate that it can affect some individuals after taking antibiotics and leading to an intestinal imbalance.

Known Cases of Auto Brewery Syndrome

In one known case of Auto Brewery Syndrome, a man in Texas showed up to the Emergency Room complaining of dizziness. A quick test revealed he had a Blood Alcohol Content (BAC) of .37% – almost five times the legal limit for driving in the state. However, the man claimed he had not had a drop of alcohol. This was not the first time it had happened to him, either. After performing some studies on him, the doctors were able to confirm he had Auto Brewery Syndrome when they gave him a .12% BAC without drinking any alcohol, simply by feeding him carbohydrate rich foods.

Could Auto Brewery Syndrome Be the Cause of Your DUI?

Although Auto Brewery Syndrome is still not well-understood by the scientific and medical community, there are some cases where it has been used as a defense against drunk driving charges. Proving such a case can be very difficult, however, because the condition is not well-known and courts will be skeptical as to any defendant who claims he or she had a BAC over the legal limit but was not actually drinking. Evidence in such a case will need to include expert testimony from a doctor or other expert who can verify that a defendant suffers from the condition. If you suspect you or someone you know has Auto Brewery Syndrome, it is important to consult a physician to have any symptoms well-documented.

Furthermore, if you or someone you know has been arrested or charged with DUI/DWI, it is important to consult an experienced attorney immediately. A lawyer who specializes in drunk driving law will be able to review your case, look for rare circumstances such as Auto Brewery Syndrome, and help to prepare the best defense possible. With the right evidence, an experienced drunk driving attorney may be able to have the charges against you dropped completely.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Can Help, Even in Complicated Drunk Driving Cases

A charge for driving under the influence of alcohol is extremely serious and defending those cases often involve complicated evidentiary issues. For that reason, it is important to consult a drunk driving lawyer who understands and can review your case completely. An experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Blood Alcohol Tests, Driver's License Suspension, Driving Under the Influence of Drugs, Drunk Driving, DWI - DUI Tagged With: alcohol blood testing new jersey, drunk driving

Breaking News: Federal Class Action Lawsuit Seeks to Throw Out Thousands of New Jersey DWI/DUI Convictions

November 14, 2016 by EMJanzekovich

A recent class action lawsuit that was filed in October is trying to throw out potentially thousands of DWI/DUI convictions in the state of New Jersey, arguing that the State Police failed to properly calibrate the breathalyzer devices used to test suspected drunk drivers. If these allegations are true, it is possible that many breathalyzer test results were inaccurate and could have been used to unfairly convict drivers in the state.

As discussed in the past, if you are pulled over in New Jersey and the officer has reasonable cause to believe that you were driving under the influence of alcohol or drugs, the officer may use a breathalyzer test to measure your blood alcohol content (BAC), which can be used as evidence against you if you are later charged for DUI/DWI. The official test used in this state is the Alcotest 7110 MK-IIIC, and there are certain rules that state must follow in order for the test to be valid.

Regulation of Alcotest 7110 and other BAC Tests

In order to be considered legally valid and admissible in evidence, a BAC test must be performed on a Alcotest 7110 MK-IIIC machine, which is the only device that has been approved by the attorney general for legally measuring BAC evidence. Moreover, the person who performs the test must be properly trained and approved by the attorney general, and there are certain rules that must be followed for certifying, maintaining, and inspecting the machine. One of the rules is that the machine must be calibrated in a specific way every six months.

The Federal Lawsuit and What it Says

The new lawsuit, which was filed last month in the New Jersey District Court, argues that some or all of the breathalyzer readings taken of suspected drunk drivers by state police officers cannot be trusted after the state Attorney General’s Office charged Sgt. Marc Dennis with records tampering.

Sgt. Dennis was a coordinator for the New Jersey State Police’s Alcohol Drug Testing Unit, and he was responsible for calibrating breathalyzers and certifying their accuracy. The lawsuits states that Sgt. Dennis falsely certified that he had properly followed all the required steps in calibrating at least three machines used to provide BAC evidence in more than 20,600 cases in Middlesex, Monmouth, Ocean, Somerset and Union counties.

If the lawsuit demonstrates that the machines calibrated by Sgt. Dennis were not properly maintained according to the legally required procedures, it is possible that the BAC readings produced were inaccurate and some of the convictions made based on that evidence will need to be reversed. This would be especially true if a driver were convicted with a reading that was close to the legal limit of .08% BAC.

Challenging a Blood Alcohol Content of .08% or Higher

If you are charged with driving under the influence of alcohol, and you provide a breathalyzer sample of .08% or higher, that BAC reading can be used as evidence in a DUI/DWI case against you.

Because the process is strictly regulated, an experienced attorney may be able to raise several challenges to the BAC results in your defense, including:

Improper certification of the Alcotest machine
Improper calibration of the Alcotest machine
Improper qualification or certification of the officer operating the Alcotest machine
Possible contamination of the Alcotest reading
Improper collection of breath sample and evidence

Because BAC readings are not always perfect, it is especially important to always consult an experienced DWI/DUI lawyer if you are pulled over and charged with drunk driving. A drunk driving attorney may be able to fight the charges against you or have the charges dismissed completely.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Can Defend You if You Are Charged with Drunk Driving

If you or someone you know is charged for any crime relating to driving under the influence of alcohol or drugs, it is extremely important to contact an experienced DUI/DWI attorney who can explain what rights you have in your specific situation. If you go to court, an experienced lawyer can also make sure you get the best result possible. Having an experienced drunk driving lawyer can make all the difference. To speak with an experienced New Jersey DWI/DUI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Blood Alcohol Tests, Drunk Driving, Federal Class Action Lawsuit

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