Breathalyzer and the Burden of Proof in DWI Cases

The breathalyzer fulfills a legislative policy and intent to provide a reliable and fair measure of alcohol in the brain. Accordingly, breathalyzer results can be used in prosecution of a per se offense of drunk driving. Moreover, the reliability of the breathalyzer is subject to judicial notice in drunk driving prosecutions. State v. Downie, 117 N.J. 450 (1990). Judicial notice means that the breathalyzer has been accepted by the courts as a reliable indicator of blood alcohol levels and therefore requires no outside proof.

In establishing the conditions of admissibility of the results of a breathalyzer reading, the responsibility for producing sufficient proof is allocated to the State and the burden of proof is by clear and convincing evidence. Romano v. Kimmelman, 96 N.J. 66 (1984)