NJ DWI/DUI Lawyer Discusses – More Breathalyzer Results Called into Question

May 30, 2020 by Edward Janzekovich

Regular readers of the Edward M. Janzekovich law blog are likely aware that breathalyzer results are routinely called into question. There have been numerous high-profile instances in the past few years demonstrating that the results of alcohol breath tests can be unreliable. In fact, courts across the nation have regularly thrown out evidence used by police officers and prosecutors that would have otherwise resulted in DUI and DWI convictions. For that reason, we like to highlight these examples when they arise to educate our readers about the importance of getting a good lawyer to analyze the evidence against you.

In New Jersey, the law offices of Edward M. Janzekovich have helped numerous clients overturn convictions, particularly in the past year following the case of State v. Eileen Cassidy, in which the Supreme Court issued a ruling deciding that the breathalyzer evidence used in 20,667 drunk driving cases in Middlesex, Monmouth, Ocean, Somerset, and Union counties were untrustworthy. The Court determined that the evidence used to support those convictions must be thrown out. With it, convicted defendants earned the right to challenge past convictions.

Similar episodes have been mirrored across the country. The most recent example occurred in Massachusetts earlier this month.

More than 400 Alcohol Breathalyzer Test Results Thrown Out by Massachusetts Court

Massachusetts Judge Robert Brennan recently issued a ruling in a series of consolidated cases that shined a spotlight on the Massachusetts Office of Alcohol Testing. The decision called into question the breathalyzer evidence used in over 400 DUI/DWI cases. The Massachusetts Court held that the members of the Office had knowledge that breathalyzers used in numerous cases were inaccurate but failed to release this information to DUI defense attorneys.

When this concealment was discovered, the head of the Office was actually fired, the results of the tests were excluded or thrown out of those case, and prosecutors were forced to either abandon those cases or attempt to prove that the defendants were driving while intoxicated without relying on any breathalyzer evidence.

This was also not the first time that Judge Brennan had issued rulings challenging the reliability of breathalyzer evidence. He issued a similar ruling last September that affected tens of thousands of DUI cases.

Why an Experienced DUI Attorney is Needed if Your Have Been Charged with DUI or DWI Based on Breathalyzer Evidence

Although these recent rulings did not take place in New Jersey, the situation still demonstrates why hiring a good lawyer is so important any time you or someone you know is arrested, charged, or convicted of drunk driving. Many people believe that if they fail a breathalyzer test, that is the end of the line and they will be found guilty.

This is simply not true.

Defendants in a DUI or DWI trial are entitled to present a defense and question the evidence being used against them. These cases show that, sometimes, the evidence is unreliable or even knowingly inaccurate.

Specifically, breathalyzer machines must be properly calibrated and administered according to strict guidelines in New Jersey, in order to maintain their accuracy. If the machine is not calibrated properly or the test is not given correctly, the test results could show a false positive, which could lead to an unfair conviction resulting in significant fines, penalties, loss of driving privileges, and potential jail time.

An experienced lawyer can check and challenge breathalyzer evidence by requesting the proper discovery, going through the records to determine adherence to the rules, and possibly even submit the reports and testimony of expert witnesses who can demonstrate in court that the evidence is unreliable. A good lawyer will know where to look and what questions to ask. If the breathalyzer evidence is excluded in a case, many times the case will be dismissed completely

NJ DUI Lawyer Edward M. Janzekovich Knows Where to Look and What Questions to Ask

If you or someone you know has been arrested, charged, or convicted of drunk driving, it is extremely important to contact an experienced DUI/DWI attorney. A great attorney will be able to review your case and determine whether or not you have been falsely charged. Having a knowledgeable 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: Breathalyzer Tests Tagged With: DUI and DWI

Comparing Alcohol by Volume (ABV) Between Modern Drinks and the Standard Drink

December 18, 2018 by Edward Janzekovich

You may have heard the old adage that “A drink is a drink is a drink.” The saying means that one beer is equal in strength to one glass of wine is equal to one mixed drink or one shot. Once upon a time, this saying probably held a little more truth. Unfortunately, these days with the extreme variation in alcoholic beverages available (from craft beers to session ales to craft distillers and cask strength whisky), one drink can mean many things to different people – and the alcohol content of one drink can vary wildly. Of course, that means that the way each person is affected by different drinks can vary wildly, too.

When it comes to blood alcohol content (BAC), you may have also heard that having only one drink per hour will probably keep you sober enough to drive. This is based on the belief that the average human liver can process one drink’s worth of alcohol in one hour. Unfortunately, that also may not be true. Depending on who you are and what you’re drinking, having more or less than one drink per hour can still be enough to put your BAC over the legal limit of .08% BAC, resulting in intoxication and making it illegal for you to get behind the wheel.

What is the Standard Drink?

When the standard drink was first defined, the definition considered that the majority of alcoholic beverages being consumed were largely similar. Until recently, the average beer drinker had access to regular beer (like Budweiser or Coors Banquet) that had about a 5% alcohol content or a light beer (like Bud Light or Miller Light) that had 4.2% alcohol by volume. Wine drinkers drank wine that was about 12% alcohol, and liquor drinkers had drinks that were 1.5 fluid ounces and 40% abv or 80 proof.

Click Image for full size view

This graphic from the National Institute on Alcohol Abuse and Alcoholism (NIH) summarizes the traditional view:

Craft Beer and Other Modern Drinks

Unfortunately, the standard drink model is less applicable in 2018. According to one study, the average craft beer sold in 2014 was 5.9% ABV, nearly 18% stronger than a traditional regular beer. Nowadays, there are many beers available at bars that are 10% ABV or more. Dogfish Head, one of the nation’s largest independent craft breweries regularly makes beer that is around 18% ABV (World Wide Stout, 120 Minute IPA, Fort, and others). One 12-ounce beer that is 18% ABV is stronger than 4 Bud Lights!

Similarly, craft distilleries and non-standard liquor offerings are becoming more popular. Single barrel bourbons and cask strength whiskies are widely available. Cask strength means that the liquor is not diluted from the liquor available in the barrel where the liquor is aged. This will vary from one liquor to the next, from one brand to the next, and from one year to the next. For comparison, however, Maker’s Mark is a popular bourbon that is normally sold at 45% ABV or 90 proof. One recent bottle of Maker’s Mark Cask Strength is 55.65% ABV or 111.3 proof. This means that the Cask Strength version can get you intoxicated nearly 25% faster.

What this Means for Intoxication

Under New Jersey’s drunk driving law, it doesn’t matter how many drinks you’ve had. You can be arrested and charged if you are driving while intoxicated, meaning you can be convicted of DUI or DWI if you are impaired. If a blood alcohol test or breathalyzer test finds that your BAC is over .08%, you can be convicted even if you don’t feel drunk and your driving isn’t affected. This means that the law doesn’t care if you’ve only had one drink, since one STRONG drink can actually be more alcoholic than four light drinks and can get you drunk 4 times faster!

Therefore, we at the Edward M. Janzekovich law blog always recommend that you have a designated driver or call a taxi or Uber if you’ve had even one drink. If you or someone you know is pulled over after drinking, telling a police officer you only had one drink may not mean anything. Instead, we recommend keeping what you say to a minimum, because anything you say can be used against you. If you or someone you know is arrested, charged, or convicted, calling a good attorney as soon as possible will be the best defense.

New Jersey DUI Defense Attorney Edward M. Janzekovich Is There If You’ve Been Arrested, Charged, or Convicted

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: Breathalyzer Tests, DUI

Proposed Ignition Interlock Law Approved by Senate Judiciary Committee

October 2, 2018 by Edward Janzekovich

A bill previously addressed here on the Edward M. Janzekovich law blog was approved by the New

Jersey Senate Judiciary Committee this past week. The proposed legislation, introduced by State Senator Nicholas Scutari, could result in increased penalties for many drivers convicted in the state – including for first time offenders of driving while intoxicated. Specifically, the bill hopes to make it mandatory for anyone who is convicted of DUI/DWI to install an ignition interlock device on his or her vehicle.

Now that the bill has been endorsed by the New Jersey Senate Judiciary Committee, the bill can be considered by the New Jersey Senate and then the State Assembly. The proposal has also been supported by the Advocates for highway and Auto Safety in a letter addressed to Senator Scutari and Vice Chairperson of the Committee, Nia H. Gill.

Ignition Interlock Devices: What Are They and How Do They Work

An ignition interlock device is a breathalyzer machine that is installed in a vehicle to sense a driver’s blood alcohol content (BAC). It is designed to prevent contact us online todaydrinking and driving. It is made up of a mouthpiece, a handheld unit and a cord that attaches to the car’s ignition system. A driver must blow into the mouthpiece to provide a breath sample. If the sample is higher than the programmed limit, typically .05% BAC in New Jersey, then the vehicle will not start.
Once the vehicle is moving, the driver must provide new breath samples – “rolling retests” – every 15 minutes to one hour. If the driver fails a test or retests are not performed on time, the equipment will record a violation. The device also can register and keep track of any attempt to tamper with it.

How This New Bill Can Change the Law

If you are convicted of DUI or DWI in New Jersey, you may be required to install an ignition interlock device on your vehicle. Under current law, someone convicted of DWI for the first time can have their license suspended for either 3 months (if his or her blood alcohol content is between .08% and .099%) or 7 to 12 months (if his or her blood alcohol content is .10% or greater). If a first-time offender is convicted with a blood alcohol content of .15% or greater, he or she must also have an ignition interlock device installed on his or her vehicle during the period of license suspension until between 6 months to 1 year after driving privileges are restored.

Under the proposed laws, any driver would need to have an ignition interlock device installed on the vehicle, regardless of his or her BAC at the time of the first conviction. It is possible that the bill will also lessen the period of license suspension for those individuals, based on the belief that the Ignition Interlock Device requirement could save more lives than suspending driving privileges.

Why Advocates are Supporting the Bill

Senator Scutari stated that he doesn’t believe license suspensions are doing enough to prevent drunk driving accidents and repeat offenses by drivers who have been previously convicted. According to one statistic, the average person arrested for intoxicated has driven drunk on 80 occasions. Another statistic estimates that 50-75% of convicted drivers continue to drive on a suspended license.

An Ignition Interlock Device acts as a mechanical obstacle to driving for the persons. This means that a convicted driver has very little choice except to drive sober, as long as the driver is operating his or her own vehicle.

As always, it is important to recognize that this may not pass into law, or it may pass but then be vetoed. A similar law was vetoed by previous Governor Chris Christie in the past. If the bill is passed, it could prove to be a very costly change for first time offenders, because Ignition Interlock Devices are not cheap to install or maintain.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Help DUI and DWI Defendants

Any person charged with driving under the influence of alcohol or drugs should always contact an experienced drunk driving attorney as soon as possible. A knowledgeable lawyer will be able to review the case, provide advice, and possibly provide a complete defense. If you or someone you know is charged with drunk driving in New Jersey, an good lawyer 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: Breathalyzer Tests, DWI - DUI

New Case on License Suspension – Certain Offenses Considered Fourth Degree Crime

July 17, 2018 by Edward Janzekovich

As every driver should know, it is illegal to drive drunk in New Jersey. The specific law that prohibits driving while intoxicated is N.J.S.A. 39:4-50. In New Jersey, you are also required to submit to a breathalyzer test if you are pulled over and the police officer has a reasonable suspicion to believe that you have been driving drunk. Violating the breathalyzer requirement law is known as Refusal to Take a Breath Test – or just refusal – and it is detailed in N.J.S.A. 39:4-50.2.

If you are convicted under either of these laws, you can be sentenced to several penalties including severe fines, jail time, and loss of driving privileges. When your license is revoked, you are completely prohibited from driving: you cannot drive to work, you cannot drive to school, you cannot drive to the store, you cannot even drive to get medical treatment or attend doctor’s appointments — New Jersey does not allow for any temporary, provisional or “work” licenses.

Under the recent case of State v. Dougherty, which was passed by the Superior Court of New Jersey Appellate Division earlier this month, the Court made it clear that a driver commits a crime of the 4th degree if he or she operates a motor vehicle during a period of license suspension for a second or subsequent violation of the previously mentioned laws. Until this case, it was not clear whether both former violations had to be of the same law – both DWIs or both refusals – or whether they could be different. Dougherty confirms that both former violations do not need to be the same, which could mean even greater penalties for anyone found driving with a suspended license.

State v. Dougherty

In Dougherty, the defendant was arrested and charged with driving with a suspended license. At the time he was pulled over, he had one prior conviction for DUI and one prior conviction for refusal, and his license was still suspended as a result of the refusal.

Based on this, he was convicted of driving with a restricted license under N.J.S.A. 2C:40-26(b), “Operating motor vehicle during period of license suspension,” which makes it a crime of the fourth degree to operate a motor vehicle with a suspended license when the suspension was the result of a second or subsequent conviction for driving while intoxicated or refusal. This is important, because driving with a restricted license based on a first offense is not considered as serious a crime (but will still result in jail time). Since this was the defendant’s second period of license suspension, the law stated that the court was required to impose a mandatory sentence of 180 days and the defendant would not be eligible for parole. This sentence is required and cannot be lessened or bargained against.

A fourth-degree crime is also considered a serious crime under the law – as compared to a traffic offense, misdemeanor, or disorderly persons crime – and will be listed on a person’s permanent record as a violation of a major crime. This could more seriously affect the driver’s future ability to gain employment or apply for certain positions based on the person’s criminal history.

Taken all together, driving on a restricted license as the result of a second DWI/DUI conviction and/or a second refusal conviction could elevate the violation from a quasi-criminal proceeding to a full 4th degree criminal proceeding, including indictment, heightened penalties, and increased jail time. For that reason, if you or anyone you know has been arrested for, charged with, or convicted of drunk driving or refusal, it is important to contact a knowledgeable attorney as soon as possible. A good lawyer will be able to review your case as well as your history and present any applicable defense on your behalf including appealing past convictions.

New Jersey Refusal Attorney Edward M. Janzekovich Is Prepared to Defend Against the Serious Charges You’re Facing

A conviction for refusal or drunk driving can mean serious penalties – jail time, heavy fines, and loss of license at a minimum. Driving with a suspended license can mean even more consequences. If you or someone you know is charged with driving under the influence or refusal, it is important to have a lawyer who knows how to help. A good attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 1-732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Breathalyzer Tests, DWI - DUI, License Suspension

New Jersey DUI Attorney Discusses the Elements of Refusal and the Penalties You Could Face

December 12, 2017 by Edward Janzekovich

Many people do not realize that if you are pulled over in New Jersey and a police officer has probable cause to believe you have been driving drunk, you are required to submit a breathalyzer sample. The law is written in such a way that it is a condition of being allowed to drive in New Jersey. As we have discussed here in the past, in the Edward M. Janzekovich Law Blog, this requirement even surpasses your rights given under the Miranda warnings, which many people are familiar with – meaning you do not even have the right to speak to an attorney or to remain silent before submitting a breath sample at the police station.

If you fail to comply with the requirement to provide a breath sample, you can be charged and/or convicted under N.J.S.A. 39:4-50.4, Refusal to Take a Breath Test, which could carry equally heavy penalties to drunk driving. It is important to note that if you are pulled over, a police officer may ask you to take a roadside or portable breath test (PBT). The PBT is less accurate and refusing to submit to the PBT does not violate the Refusal law. It only counts as “Refusal to Take a Breath Test” if a driver refuses to submit to the more accurate, official breath test that occurs back at a police station.

The Elements of Refusal to Submit to a Breath Test

The offense of refusal to submit to a breath test requires the government to prove four elements beyond a reasonable doubt, before you can be convicted:

The arresting officer had probable cause to believe that the driver had been driving or was in actual physical control of a motor vehicle on the public road, street, highway or other area of the State while under the influence of alcohol or drugs.
The driver was arrested for driving while intoxicated.
The officer requested the driver to submit to a chemical breath test and informed the driver of the consequences of refusing to do so in a language the defendant can understand while sober.
The defendant thereafter refused to submit to the test.

As we have discussed in the past, the State may be able to charge you with refusal even if you think you are complying with the request to submit a breath test. For instance, the requirement to “submit to the test” includes a requirement that you provide a breath sample that is large enough for the machine to test.

Accordingly, this area of law can be extremely complicated. Because a prosecutor must prove all of these elements in order to convict a driver of refusal, it is important to always contact an experienced DUI lawyer if you or someone you know if ever charged with drunk driving or related motor vehicle violations. A good attorney will be able to review the evidence against you and determine if the state can sufficiently prove all the elements of a crime against you, and will be able to present the best defense on your behalf.

Punishments for Refusal to Submit to a Breath Test

New Jersey law authorizes serious fines for all violators of the Refusal law that ranges from $300 to $500 for a first offense, $500 to $1000 for a second offense, and $1000 for a third or subsequent offense. This does not include any court fees and other applicable monetary sanctions, such as the $100 Drunk Driving Enforcement Fund surcharge. This also does not include the extra $1000 per year motor vehicle surcharge that the driver will have to pay for three years, as well as any increase in insurance premiums that the automobile insurance company will choose to add.

A convicted driver will also be required to attend an alcohol education program at the Intoxicated Driver Resource Center (IDRC). This program includes a fee of $75 per day for a first offender and $100 per day for subsequent offenders. Failing to attend the IDRC will result in a jail sentence, and could result in permanent administrative loss of license for subsequent offenders.

A driver can also lose his or her license for Refusing to Submit to a Breath Test. The period of license suspension is the same as if the driver had been convicted of driving while intoxicated, and ranges from seven (7) months to one (1) year for a first offense, two (2) years for second offense, and ten (10) years for a third or subsequent offense.

Finally, a driver will be required to install an ignition interlock device on his or her vehicle. This requirement ranges from six (6) months to one (1) year after the period of license suspension for first-time offender, or one (1) to three (3) years for a subsequent offender. This also will come at the driver’s own expense.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Can Help if You are Charged with Drunk Driving or Refusal

A conviction on DWI/DUI and refusal charges can mean serious penalties – jail time, heavy fines, and loss of license, that can seriously affect your ability to care and provide for yourself or your loved ones. Defending against these charges can also be very complicated. If you or someone you know is arrested for refusing to submit to a breath test, it is important to have a lawyer who knows how to help. 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 1-732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Filed Under: Breathalyzer Tests, Criminal Law, Drunk Driving, DWI - DUI

Refusal, Breath Sample Size, and Women Over Sixty

August 8, 2017 by Edward Janzekovich

If you are pulled over in the state of New Jersey, and a police officer has reasonable suspicion to believe that you have been driving while intoxicated, there is a good chance that you will eventually be asked to provide a breath sample so the police officer can determine your blood alcohol content (BAC). There are actually two breath tests that the police officer may use on you. The first is the roadside breath test, which is actually an unofficial test, also known as a portable breath test (PBT). The second, official test, and the only one admissible in court, is much more accurate, but there are also many more rules that come with how the test is conducted.

The law actually requires that you provide an official sample if a police officer requests that you provide the sample based on probable cause. You do not have the right to refuse to comply with the test, known as the Implied Consent statute – although you are not required to comply with a PBT. If you do not provide a breath sample, you might be charged with drunk driving, as well as charged and possibly convicted of N.J.S.A. 39:4-50.2, Refusal to Take a Breath Test, which could carry equally heavy penalties. What most people do not know is that you can be charged under the Refusal law even if you do provide a breath sample, but you do not follow directions and give breath samples that are large enough.

Sufficient Breath Sample Size

In New Jersey, official breathalyzer tests must be conducted on a Draeger Alcotest 7110. Since the case of State v. Chun in 2008, the state has ruled that drivers are required to provide a breath sample that is sufficiently large. The minimum volume for a breath sample is at least 1.5 liters of air. If a driver does not provide a sample that is large enough, he or she can be convicted of Refusal to Take a Breath Test, as if he or she did not attempt to provide a sample at all. It is not a defense to the law if a driver is too drunk to provide a complete breath sample, but there may be other defenses if a driver has a health condition or some other legitimate reason why he or she cannot provide a sample.

Number of Breath Samples

Moreover, the Implied Consent law not only requires that you submit to a sufficiently large breathalyzer sample if you are asked by a police officer with probable cause. The law also requires that you provide breath samples – meaning the police usually require a minimum of two complete samples for you to be in compliance with the law. This is also to ensure accuracy in BAC test results. If one test result is over the legal limit of .08% BAC, and one is under the legal limit of .08% BAC, the discrepancy can be used in favor of the driver, since the police will use the lower result. In the case of State v. White, the Court ruled that the failure to provide at least two breath samples could constitute Refusal to Take a Breath Test.

What if You’re a Woman Over 60 Years Old?

If you are a woman over 60 years old, there are actually different rules that apply to you when it comes to breath sample size. After studying the scientific reliability of Alcotest breath results, the New Jersey Supreme Court actually decided to adopt separate rules on breath volume size, because women over the age of 60 may have difficulty in providing a sample consisting of 1.5 liters of air within the required time period. Specifically, the study found that women from age sixty to sixty-nine have an average breath volume of 1.4 liters, women seventy and over have an average of 1.3 liters, and women eighty and over have an average volume of 1.2 liters. At the same time, the Court found that men, regardless of age, were capable of producing a sample of 1.5 liters.

Accordingly, the Supreme Court directed that Alcotest 7110 machines be reprogrammed so that smaller breath sample sizes could be taken and used to get BAC results for those individuals. The Supreme Court also decided in Chun that it would be unfair to prosecute women over the age of sixty under the Refusal to Take a Breath Test law if they could not provide an adequate sample of 1.5 liters of air. At the same time, if a woman over the age of 60 does provide at least one sample of 1.5 liters of air, but failed to do so on subsequent attempts, that fact could be used by the prosecutor as evidence to support a charge of refusing to submit to a breath test.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Knows How To Help if You are Charged with Drunk Driving

A conviction on DWI/DUI and refusal charges can mean serious penalties – jail time, heavy fines, and loss of license. Defending against these charges can also involve extremely complicated evidentiary issues. If you or someone you know is arrested for driving under the influence of alcohol or drugs, it is important to have a lawyer who knows how to help. 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: Breathalyzer Tests, Drunk Driving

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