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Tuesday, March 3, 2009

Is a 20 minute observational period required in DUI cases

In the State of New Jersey, there is a lot of controversy regarding the twenty minute observational period in DWI prosecutions or defense. Is the twenty minute observation period required in the State of New Jersey to prosecute a DWI defendant? The twenty minute observational period is basically a state police safeguard that requires the police officer to observe the DWI charged subject for twenty minutes immediately prior to administrating the breath test. In my opinion, as a defense attorney, the twenty minute observational period is required b/c it provides a necessary safeguard from overestimated breath samples. An overestimated breath sample can result by a person, prior to providing a breath sample, burping thereby artificially inflating the actual breathalyzer result. Presently, in the State of New Jersey there is a dichotomy among the various municipal courts on whether or not the twenty minute observational period is legally required. I can tell u based on my personal experience that Judges and prosecutors tend to favor the twenty minute observation period. In other words, they do give it deference. As such, if u can establish, by independent proof, that the twenty-minute observational period was omitted then that BAC reading should be thrown out. Furthermore, the dichotomy on the applicability of the 20 minute observational period arises, in somepart, from the recent opinion in State v. Chun. In Chun the Court suggested in dicta that the 20 minute observational period is required. Some argue, such as an overzealous prosecutor, that the Court's decision in State v. Chun just indirectly touched upon that issue, therefore, it does not mandate or require a 20 minute observational period! However, subsequent law division cases, deciding DWI cases on appeal have ruled that the the twenty minute observation period is required. See, State v. Nucifora a Camden County Law Division Decision. ( a copy of said decision can be obtained by simply searching its title on a search engine)

1 comment:

  1. Driving under the influence of alcohol consumption is regarded to be one on the severe violations throughout the globe. Most of the nations have serious punishment for this type of criminal offense, as when drunk and driving it might lead to incidents that hurts other people too. In the event when one is booked for drunken drive, the top, the individual can do is to employ DUI Lawyers to protect him.

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