Defense of New Jersey
DWI and Criminal Cases

Knowledge and experience are necessary—but not sufficient–to win: winning cases result as much from the passion and zeal to punch it through.

Defense against a DWI charge requires trial skill and thorough technical knowledge.

Nothing can be taken for granted.  A good example of this would be cases where an Alcotest cannot obtain two breath readings that agree within a range of programmed tolerances, and the police detain an arrestee for an additional half-hour to two hours or more while demanding additional, repeated breath testing.  Even worse, prosecutors at trial nearly always seek to justify this misconduct, and judges too frequently uphold it—despite the illegality.  All too often defense attorneys do not understand breath testing technicalities, and consequently their clients are prosecuted on unscientific, unreliable and illegal evidence.

Set out below is a comprehensive legal argument authored by nj dui lawyer Bartholomew Baffuto, Esquire holding the State accountable to the Order of the Supreme Court settling the issue.

Legal Brief:

By Order of the Supreme Court, no AIR is admissible in any prosecution without a tolerance calculation worksheet, and a tolerance calculation worksheet shall only be prepared and produced at trial “in each prosecution in which an AIR is offered as evidence and in which there are only two reported test samples [.] . . .”   Chun at 150 (emphasis added).  *

By the Order’s express and imperative language the tolerance calculation worksheet is solely designed and authorized in prosecutions where not more than two reported breath samples exist. The universe limit is two reported test samples per prosecution — not two reported test samples per AIR.  This result is compelled by the Supreme Court’s Order expressly mandating that all defendants prosecuted using Alcotest Firmware version NJ 3.11 are identically situated and are to be treated identically, i.e., “For all pending prosecutions, including all prosecutions in which imposition of sentence has been stayed by our January 10, 2006 Order [the so-called Chun stay], and in all future prosecutions based on tests conducted prior to the implementation of our directives through creation and implementation of revised firmware, . . .”  Chun at 150.

The Chun-stay defendants facing prosecution with two reported breath test samples–calculated post-Chun as out of tolerance–could not be re-tested months or years later, and identically situated Firmware 3.11-tested defendants shall not be re-tested.

To proceed otherwise works an independent 14th Amendment Equal Protection  and Due Process violation.  See State v. DeBonis, 58 N.J. 182, 198-199 (1971).

The Chun decision—published March 17, 2008–defines the State’s remedy as “forthwith” correcting firmware version 3.11 “to set the acceptable tolerance range for breath sample readings at the greater of plus or minus five percent of the mean, or plus or minus 0.005 percent BAC from the mean [i.e., mathematically the same tolerance calculation done manually in the case of the Chun-stay defendants]; . . .  Chun at 151-153.

The State has stretched any reasonable definition of “forthwith” beyond all reasonableness, but “[z]ealousness in ridding our roads of drunk drivers cannot overcome our ordinary notions of fairness to those accused of these offenses.  Therefore, we are constrained to direct not only that future firmware updates utilize the tolerance computation that we have concluded is acceptable, but that all pending prosecutions [the Court defines pending as every prosecution prior to the date the NJ 3.11 firmware is revised as Ordered] include an evaluation of whether the two reported test results exceeded this acceptable tolerance.”  Chun at 118 (emphasis added); see Chun at 150.

Beyond legal doctrines of equal treatment in identical situations and of fundamental fairness, the Chun Court found as a fact that “[t]he use of a doubled tolerance, however, deprived some percentage of test subjects of a third, and perhaps dispositive, test. . . .  To be sure, if we had the third test data for those defendants, some of them would achieve a result within the authorized tolerance and thus be shown to have violated the per se limits.  But just as surely, there may be others for whom a third test would have yielded a result still further out of range so as to, perhaps, call the accuracy of the particular machine into question.  And it is even possible that there might be a defendant for whom a third test would result in a reading that would meet the test for tolerance but would exonerate that individual.”  Chun at 117-118.

As Ordered by the Chun Court, exclusion of all breath test evidence is the mandatory and sole remedy for out-of-tolerance reported breath test results.

Accepted sample Subject Breath Test 3, et seq. should exist on the Alcohol Influence Report (AIR) Sequential File Number 01408, D-1, and does not because of contumacious State action.  That specific information is held to be Brady material by the Chun Court, and its spoliation cannot be undone by additional, open-ended testing ending only when the police randomly procure breath test results they like, e.g., AIR Sequential File Number 01411, S-12.  AIR Sequential File Number 01411, S-12, can tell us nothing about the effect of third or subsequent breath testing under Sequential File Number 01408, D-1, in relation to the two reported subject breath test results shown on AIR Sequential File Number 01408, D-1.

If a work-around such as police-initiated unlimited and random testing could make the defense whole, the Chun Court would have told us.  Instead, the Court found as a fact that exculpatory information is irretrievably lost and that the only remedy is exclusion of breath test evidence.

Concepts of equity also inform the Court’s rationale for the barring of breath test evidence.  The Chun Court found that the State’s Chief Forensic Scientist withheld information from the Superior Court in a scheme to double the tolerance range firmware programming and thereby conceal any need for verification by a third or subsequent subject breath test.  Chun at 113-115; n.34.  A defendant cooperating with breath testing has the clean hands on this equitable issue.

The printing of AIR Sequential File Number 01408, D-1, ended Chun-authorized breath testing.

AIR means Alcohol Influence Report.  An AIR is a hardcopy printed out that purportedly records a subject’s breath testing processing and result.