A recent opinion issued, by a New Jersey Superior Court Judge, gives defendants charged with driving under the influence of liquor in violation of N.J.S.A. 39:4-50 a valid DEFENSE. This opinion provides a breath of fresh air, in that, this opinion affords defendants charged with DWI some protections against unreasonable police or administrative abuses when obtaining breath test samples from an accused drunk driver. On February 9, 2011 the Honorable Max A. Baker, J.S.C. of Superior Court of New Jersey, Atlantic County/Criminal Division presiding over the matter of State of New Jersey v. Emilio Rivera held that the only permissible tempature probe to be used with the new Alcotest breath test machine is the ERTCO-HART temp probe--anything else is unacceptable.
In State v. Rivera Judge Baker also indicated that the State has the burden of establishing that the mouth piece provided to the dwi defendant must be santized or established it's sanitastion AND the room in which the DWI breath test is adminstired should be free from any electronic devices.
This case is a win for defense counsels across New Jersey because it gives us some ammunition to challenge the test results of the Alcotest when a defendant may clearly be not guilty of DWI.
Anyone interested in a copy of the actual transcript of the decision please advise and I will provide a copy via email.
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