On an NJ DWI appeal from a ruling of the Lawrence Township, NJ Municipal Court, defense attorney, Robert Ramsey, convinced a Mercer County NJ Superior Court judge to exclude the breath test reading due to the Lawrence Township police officer’s failure to recall observing the NJ DWI defendant for the required 20-minute observation period before conducting the NJ Alcotest.
In this case two Lawrence Township police officers booked, conducted drunk driving field sobriety tests, and administered the NJ Alcotest at the Lawrence Township NJ police station.
New Jersey is similar to many other states which require the police officer to observe a DWI defendant for a 20-minute period before conducting a DWI breath test. The police officer is required to make sure that the defendant does not ingest any sources of additional alcohol, regurgitate, or burp/belch. All of these actions would not result in accurate breath test due to mouth alcohol.
The Superior Court ruled against the Mercer County NJ prosecutor by stating that the 20-minute observation rule was required by State v. Chun. The Court stated the police officer did not have to watch the DWI suspect continuously, but did have to observe the suspect in close proximity and with the police officer’s senses (not just sight).
Also more than one police officer can partake in the observation period so that one officer can do another task, such as getting the NJ Alcotest machine prepared for the DWI breath testing.
In this case the Lawrence Township police officer could not testify under oath that the NJ DWI suspect did not regurgitate or burp/belch, and therefore, the State could not prove its case.