There is a right to an independent blood test under New Jersey drinking and driving laws. A defendant may successfully challenge the introduction of a breathalyzer examination when he or she is “informed of his right to have an independent examination and attempts to take advantage of that right, but is not afforded a meaningful opportunity to have the independent test conducted. That is, it must be shown that the absence of established police procedures has interfered with or thwarted defendant’s attempt to exercise the right to an independent examination.” State v. Jalkiewicz, 303 N.J. Super 430 (1997). In this case, the arresting officer’s summoning of the cab immediately upon completing the breathalyzer tests on defendant, taken in conjunction with his prior advice to defendant concerning the right to an independent test, was all that was necessary to further defendant’s exercise of his right. Rather than seek an independent blood test, the defendant used the cab to take himself home. Thus, there was no thwarting of the defendant’s right to have an independent test. It is only where the absence of police procedures interfere with the defendant’s attempt to exercise his statutory right that relief must be given. Id.

However, where the evidence demonstrates that the police thwarted defendant’s opportunity to arrange a meaningful independent blood test, the appropriate sanction is a suppression of the blood test results. However, a defendant may still be found guilty based upon observation evidence that he operated his motor vehicle while under the influence of alcohol. State v. Broadley, 281 N.J. Super 230 (1992).

There are several important issues that can be raised that are unrelated to the level of intoxication of the defendant. The first involves the legal justification for the motor vehicle stop. Both the Fourth Amendment to the US Constitution and Article 1, paragraph 7 of the New Jersey Constitution ban one type of search and seizure, one that is unreasonable. Searches and seizures that are undertaken without the authority of a judicially issued warrant are presumed to be invalid and thus unreasonable under both the State and federal constitutions. Therefore, in every drunk driving case it is the State’s responsibility to demonstrate that the police seizure of the defendant’s motor vehicle by way of a motor vehicle stop and any subsequent search of the defendant or the vehicle were reasonable. The physical evidence recovered from the search of a motor vehicle, such as drugs or beer cans, may constitute powerful direct or circumstantial evidence of guilt. The justification for the motor vehicle stop must be based on reasonable suspicion. If it is not, it may result in the suppression of all the prosecution’s evidence. After the determination that the stop is supported by reasonable suspicion, the arrest for drinking and driving must be based on probable cause. This is a warrantless arrest by a police officer which is allowed under the New Jersey drinking and driving statute, N.J.S.A. 39:4-50. In essence, the probable cause determination is based on the totality of the circumstances presented to the officer and need only be objectively reasonable to be legally sustainable. When the arrest of a suspect for drinking and driving is found to be unreasonable because it was not based on probable cause, all evidence stemming from the arrest, including physical evidence seized incident to the arrest and the results of breath or blood tests may be subject to suppression. This is all based on the Fourth amendment protections against unreasonable search and seizure.

As I said in my previous article, New Jersey has yet to drop the inadvertence requirement from the plain view analysis as was done by the United States Supreme Court in Horton v. California, 496 U.S. 128 (1990). This issue was first presented to the Appellate Division in State v. Damplias, 282 N.J. Super 471 (1995). However, the court declined to rule on whether the inadvertence requirement (the second prong of the test) is still an essential element under Article I, Paragraph 7 of the New Jersey Constitution. The court simply noted that the test for inadvertence has two prongs: 1) Did the police know in advance where the evidence was located? 2) Did the police intend beforehand to seize the evidence? If the answer to both questions is yes, then the discovery of the evidence is not inadvertent and the plain view exception does not apply. However, if the answer to the first prong is yes and the answer to the second prong is no, the the inadvertence requirement is satisfied. Seven years later, the New Jersey Supreme Court had an opportunity to clarify the issue but declined to do so. In State v. Johnson, 171 N.J. 192 (2002), the Court avoided the question and declined to rule on whether the inadvertence prong is still a requirement under the State Constitution. The Court simply held that, to the extent that the inadvertence requirement still exists in the wake of the Horton decision, it was satisfied in the Johnson case. Accordingly, it appears that the inadvertence prong is still part of the analysis in New Jersey with regard to the plain view exception to the warrant requirement.  

There were arguments at the New Jersey Supreme Court this past Monday over the state’s new drunk driving test, the Alcotest. The state Supreme Court judges must put their stamp of approval on the machine for it to go live statewide. For them to do so, they must determine that it is scientifically reliable enough to be used in DWI prosecutions in New Jersey. The Alcotest 7110, which would replace the Breathalyzer which has been in use since the 1950s, has been used in 17 counties since early 2006. The New Jersey Supreme Court has stayed sentencing pending its review of the machine’s reliability. As many as 7,800 defendants in DWI cases based on the Alcotest are awaiting the Court’s ruling on the machine’s reliability. In November, Special Master Michael Patrick King concluded, based on a voluminous fact-finding record, that the Alcotest is scientifically reliable for evidentiary purposes, subject to safeguards meant to compensate for software flaws. It was his second report recommending implementation, and Monday was the Court’s second hearing on whether to adopt King’s recommendation.

There are experts that contend that errors in Alcotest readings are still possible due to software and mechanical issues. The Alcotest performs two tests on each breath sample, using electrochemical and infrared technology, but the electrochemical test tends to become less accurate over time due to fuel-cell depletion. The device is programmed to compensate by using the infrared value to compute the electrochemical result. King recommended that the device be calibrated for accuracy and its fuel cell replaced, if necessary, every six months–twice as often as the annual tune-up he originally suggested.

It will be interesting to see how the Court finally rules on this crucial issue in New Jersey DWI law.