Defense of New Jersey
DWI and Criminal Cases


New Breath Test Defense

Q. Can you tell me more about the new defense invented by your office? How is it important to the defense of my case?

A. This office has been continuously working on mathematical and statistical analyses with a statistician to develop new defenses. In defending against results from a newly introduced instrument, the Alcotest 7110 in New Jersey, the lawyer needs to have technical knowledge. Our statistical consultant has been assisting this office since the Alcotest litigation in State v. Chun, et al. In the summer of 2009, we innovated a defense that reviews the breath readings. When you blew into the machine at the police department, the machine yielded a reading (If not, you probably were charged with refusing to be breath tested). We developed something that has invalidated and challenges forensic support for readings and has excluded breath test results in most cases where this office has been retained.

Q. What is the significance of that?

A. In prosecuting a DWI case, there are mainly two types of evidence: 1) breath readings and 2) observation evidence. The very first thing (and also probably the most challenging thing) in defending a DWI charge is to exclude the breath result from evidence. With our discovery, this office succeeded in proving to trial courts non-compliance of the instrument with the Supreme Court requirements. Because of this, breath readings were excluded from evidence. That means, a first offender in New Jersey with a breath test result of 0.12, for instance, instead of losing a license for 7 to 12 months, he or she would have lost their driving privilege only for 3 months. As you see, defending a DWI charge requires technical knowledge. Mr. Baffuto’s knowledge of the Alcotest and extensive DWI defense experience have enabled him to exclude breath readings from evidence.