A breath test result can look like the strongest evidence in a New Jersey DWI case, but it is not automatically admissible. The State must establish the required foundation for the Alcotest result and show that the evidence was obtained lawfully. Problems involving testing procedures, the device, or the stop and arrest can provide grounds to challenge the result, although suppressing the breath test does not necessarily end the case.
At The Kugel Law Firm, New Jersey DUI defense attorney Rachel Kugel represents drivers facing DWI charges involving disputed breath test evidence. Our team examines the Alcotest records, police reports, station video, and circumstances surrounding the stop and arrest for issues that can affect admissibility. We also identify the specific procedural or constitutional grounds that can support a motion to suppress.
This guide explains how Alcotest evidence is used in New Jersey DWI cases, the grounds for suppression, and how the motion process works in municipal court. It also covers what can happen after a breath result is excluded and common issues that can weaken a challenge.
If you are facing a DWI charge involving an Alcotest result, call The Kugel Law Firm at (973) 854-0098.
What Is Breath Test Evidence in a New Jersey DUI Case?
Breath test evidence is a machine-generated measurement of blood alcohol concentration (BAC) taken after a DWI arrest. New Jersey uses approved Draeger Alcotest devices for evidential breath testing, including the Alcotest 7110 MKIII-C, which was used for many years, and the newer Alcotest 9510 introduced as its replacement.
The Alcotest analyzes a breath sample using infrared technology and an electrochemical fuel cell. Infrared light measures alcohol based on how ethanol absorbs certain frequencies, while the fuel cell produces an electrical response when alcohol is present. These measurements are compared, and the results must fall within the device’s required tolerance before it reports a BAC reading.
The resulting BAC can play a significant role in the case. Under New Jersey’s drunk driving statute, N.J.S.A. 39:4-50, a driver can be convicted based on a BAC of 0.08 percent or higher or on other evidence showing impairment. The BAC level can also affect the penalties imposed after a conviction.
New Jersey courts treat Alcotest results as scientific evidence, so the State must establish the required foundation before the court can consider them. For the Alcotest 7110 MKIII-C, State v. Chun requires proof that the instrument was in proper working order, the operator was qualified, and the required testing procedures were followed. The Alcotest 9510 is a newer model, and challenges to its results must be considered under the requirements and evidence applicable to that device.
Key Takeaway: A BAC reading can be important evidence in a New Jersey DWI case, but the State must establish that the Alcotest result meets the requirements for admission in court.
Can Breath Test Results Be Suppressed in New Jersey?
Yes. A New Jersey municipal court judge can exclude an Alcotest result when the State cannot establish the requirements for admitting it or when another legal basis for suppression applies. Once excluded, the breath test result cannot be used as evidence of the driver’s BAC.
A successful challenge requires more than disagreeing with the reading or believing it was too high. Defense counsel can examine calibration records, testing procedures, operator credentials, police video, and other evidence to identify a specific problem that affects the admissibility of the result.
What Legal Grounds Can Get Breath Test Results Thrown Out?
A breath test result can be challenged based on problems with the Alcotest and its required records, the 20-minute observation period, or the legality of the traffic stop and arrest.
| Ground for Challenge | What the Defense Looks For | Why It Matters |
|---|---|---|
| Calibration or foundational problem | Missing or defective calibration records, solution certifications, operator credentials, or other required Alcotest documentation | The State must establish the required foundation before the breath result can be admitted |
| 20-minute observation violation | Evidence that the required observation period was interrupted or not completed correctly | Conduct during the observation period can affect the reliability of the breath sample |
| Unlawful traffic stop | Lack of reasonable suspicion for the initial stop | Evidence obtained from an unlawful stop can be subject to suppression |
| Lack of probable cause for arrest | Insufficient facts supporting the DWI arrest | A breath test obtained after an unlawful arrest can be challenged |
Was the Alcotest Machine Properly Calibrated?
For the Alcotest 7110 MKIII-C, State v. Chun identified three key documents used to establish that the instrument was properly calibrated:
- The most recent calibration report before the defendant’s test, including the associated control and linearity tests and the credentials of the coordinator who performed the calibration.
- The most recent New Standard Solution Report before the defendant’s test.
- The Certificate of Analysis for the 0.10 simulator solution used in the defendant’s control tests.
Other records can also be relevant, including the Alcohol Influence Report, operator credentials, and additional calibration or instrument records. The newer Alcotest 9510 has its own requirements, so the standards established in Chun for the 7110 should not automatically be applied to that device.
Calibration problems can have significant consequences. In State v. Cassidy, 235 N.J. 482 (2018), the New Jersey Supreme Court held that results from affected Alcotest machines were inadmissible after a State Police coordinator failed to use a required NIST-traceable thermometer during calibration and falsely certified compliance. The problem affected breath test results from approximately 20,667 people.
Did Police Follow the 20-Minute Observation Rule?
Before an Alcotest breath sample is collected, the person must be observed for at least 20 minutes to confirm that nothing occurs that could affect the test, such as eating, drinking, regurgitating, or placing something in the mouth. If an event occurs that could compromise the sample, the observation period must be restarted as required by the testing procedure.
Continuous observation does not require uninterrupted eye contact. Instead, the observer must remain in a position to detect conduct that could affect the breath sample. Police video, timestamps, and officer testimony can help establish whether the observation requirement was followed.
Was the Traffic Stop Lawful, and Was There Probable Cause for the Arrest?
A breath test can also be challenged when it follows an unlawful traffic stop or arrest. Police need reasonable suspicion of a motor vehicle violation or criminal activity to stop a vehicle and probable cause to make a DWI arrest.
Under New Jersey’s implied consent law, N.J.S.A. 39:4-50.2, the obligation to provide a breath sample arises after an arrest for an offense arising from acts allegedly committed while operating a motor vehicle under the influence. If the stop or arrest violated the driver’s constitutional rights, the defense can seek suppression of evidence obtained as a result.
Key Takeaway: Calibration and foundational issues, violations of the 20-minute observation requirement, and an unlawful stop or arrest can provide grounds to challenge breath test evidence in a New Jersey DWI case.
How Does the Suppression Motion Process Work in NJ Court?
New Jersey DWI cases are heard in municipal court, where motions to suppress breath test evidence are filed and decided. For example, a case arising from a stop in Newark is typically handled in Newark Municipal Court, with an appeal heard in the Law Division of the Superior Court.
The process can include the following steps:
- Initial appearance and plea: The defendant enters a plea, and the court sets the schedule for discovery, pretrial motions, and other proceedings. Suppression issues should be raised before trial under Rule 7:5-2 and any deadlines set by the court.
- Discovery request: Under New Jersey Court Rule 7:7-7, the defense requests relevant evidence, such as police reports, video, the Alcohol Influence Report (AIR), calibration records, solution certifications, and operator credentials.
- Evidence assessment: The defense examines the records for problems with the Alcotest, testing procedure, traffic stop, or arrest that could support suppression.
- Written motion: If grounds for suppression exist, the defense files a motion explaining the evidence at issue and the legal basis for excluding it.
- Hearing: When factual disputes require testimony, the court can hold an evidentiary hearing and consider testimony, video, and other records.
- Ruling: The judge decides whether the challenged evidence can be admitted. The case then proceeds based on that ruling.
If required discovery is missing, the defense can seek relief from the court, such as an order requiring production, an adjournment, or restrictions on the use of evidence.
DWI Defense Attorney in New Jersey – The Kugel Law Firm
Rachel Kugel, Esq.
Rachel Kugel is a New Jersey DWI defense attorney who has built her practice around representing people charged with alcohol- and drug-related driving offenses. As the attorney behind The Kugel Law Firm, she handles cases involving breath and chemical testing, field sobriety evidence, and other issues that can play an important role in a DWI defense.
Rachel is a member of the National College for DUI Defense and the DUI Defense Lawyers Association. She has also been invited to speak on DWI defense and the business of law by the New Jersey State Bar Association, Garden State CLE, and Avvo Lawyernomics, and has earned recognition from Avvo and has been selected to Super Lawyers Rising Stars. Learn about the Super Lawyers selection methodology here. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
What Happens to Your DUI Case If Results Are Suppressed?
Suppressing an Alcotest result removes the BAC reading from the State’s evidence, but it does not automatically result in dismissal. The prosecution can still pursue a DWI charge based on observational evidence, including the driver’s behavior, odor of alcohol, speech, driving pattern, and performance on field sobriety tests.
Without an admissible BAC reading, the State cannot rely on that result to establish a BAC-based violation or place the offense in a higher BAC tier. The strength of the case then depends more heavily on the remaining evidence, including how the officer’s observations compare with police or body-camera video.
The outcome depends on what evidence remains after suppression. The case can proceed as an observational DWI, be dismissed if the remaining evidence is insufficient, or be resolved through a legally permitted plea agreement.
The breath test result can also affect the penalties for a first-offense alcohol DWI. New Jersey law sets different ignition interlock and license consequences based in part on BAC level, including separate provisions for readings of 0.08 to under 0.10, 0.10 to under 0.15, and 0.15 or higher.
Key Takeaway: Suppressing an Alcotest result removes the BAC reading from the case, but the State can still pursue a DWI charge if other evidence supports it.
What Mistakes Can Hurt a Motion to Suppress in New Jersey?
Waiting too long to raise a suppression issue can hurt a challenge. Under Rule 7:5-2, a defendant who fails to make the required pretrial suppression motion ordinarily waives the objection unless the court allows a late motion for good cause.
An incomplete discovery request can also leave important evidence unexamined. A broad request for police reports does not always include Alcotest materials such as calibration records, solution certifications, device data, and operator credentials. Requesting the relevant records allows the defense to identify problems with the device or testing procedure.
A challenge also needs to be supported by evidence tied to the specific case. Rather than questioning the reliability of breath testing in broad terms, the defense can point to a calibration problem, a failure to follow the observation procedure, missing required records, or another issue that affects the breath test result.
Some challenges also depend on scientific or technical evidence. If the defense claims that a medical condition or another factor affected the breath sample, testimony from a qualified expert can help explain how that issue relates to the test results and supporting records.
When Must a Motion to Suppress Be Filed in NJ Municipal Court?
Under New Jersey Court Rule 7:5-2, a motion to suppress must be raised before trial. Failing to do so ordinarily waives the objection unless the court allows a late motion for good cause.
The court can also set deadlines for pretrial motions as the case proceeds. Raising a suppression issue promptly gives the defense time to obtain relevant discovery and preserve evidence needed to support the challenge.
This can be especially important for police-station or mobile video that shows what occurred during the 20-minute observation period, traffic stop, or arrest. Requesting this evidence early helps preserve it for use when the court considers the suppression issue.
Get Help from a New Jersey DUI Defense Attorney
A breath test reading can seem like strong evidence in a New Jersey DUI case, but the result is not automatically conclusive. The State must establish that the Alcotest result is admissible, and the records and procedures behind the test can reveal grounds for a challenge.
Rachel Kugel and our team at The Kugel Law Firm represent drivers charged with driving under the influence of alcohol or drugs. We handle cases in Newark Municipal Court and throughout Essex County, examine Alcotest records and station-house video, and challenge breath test evidence when the circumstances support suppression.
Call The Kugel Law Firm at (973) 854-0098 to schedule a consultation. Our office is located at 1 Gateway Center, Suite 2600, Newark, NJ 07102, and serves drivers throughout Essex County and New Jersey.
Frequently Asked Questions
Can a DUI be dismissed if the breath test is suppressed?
Yes, but suppression does not automatically result in dismissal. If the State lacks sufficient evidence after the breath result is excluded, the charge can be dismissed or resolved through a legally permitted plea agreement. The case can still proceed when sufficient observational evidence remains.
What is the 20-minute observation period in NJ?
Before collecting an Alcotest breath sample, the driver must be observed for at least 20 minutes to confirm that nothing occurs that could affect the test. Eating, drinking, regurgitating, or placing something in the mouth during this period can require the observation period to restart.
Do I need an expert witness to challenge Alcotest results?
Not every Alcotest challenge requires an expert. Records and video can establish issues involving calibration, required documentation, or the observation period. Expert testimony can be important when a challenge involves physiology, a medical condition, or the scientific operation of the device.
Can I refuse a breath test in New Jersey?
Refusal is a separate offense under N.J.S.A. 39:4-50.4a. A first-offense refusal results in driver’s license forfeiture until an ignition interlock device (IID) is installed, followed by a mandatory 9 to 15-month interlock requirement, fines of $300 to $500, and $3,000 in MVC surcharges ($1,000/year for 3 years).
How often must Alcotest machines be calibrated in NJ?
Calibration requirements depend on the Alcotest model involved. For the Alcotest 7110 MKIII-C, calibration records and compliance with the required procedures are important parts of establishing the reliability of a breath test result. Problems with required calibration procedures can support a challenge to admissibility.
What happens if my breath test is suppressed but police observed impairment?
The State can still pursue an observational DWI case without the breath test result. Evidence can include the driver’s behavior, driving pattern, speech, odor of alcohol, field sobriety test performance, and police video.
