DWI LAB CERTIFICATES NOT ENOUGH UNDER NEW SUPREME COURT RULING:
Scalia wrote the opinion in the recently reviewed case of Melendez-Diaz v. Massachusetts.
The court ruled that the Sixth Amendment right for a defendant "to be
confronted with the witnesses against him" was not satisfied by a
simple lab sheet. The lab analyst who made the determination that the
white powder in the Melendez case was cocaine had to testify too,
Scalia wrote. This case would appear to apply to the blood/alcohol
results contained in lab certificates that have been admitted at DWI
trials throughout the State of New Jersey. This new ruling would appear
to require the prosecutor to now present the lab clinician and give
live testimony at trial, or face an objection to the admissibilty of
the test results.
If stopped on suspicion of driving under the influence, do you have to take an alcohol breath test?
Anyone
who operates a motor vehicle on the highways of New Jersey must consent
to the giving of breath samples for the purpose of detecting DWI if the
police have a reasonable suspicion that you may have been drinking.
This suspicion could be from your own admissions, from the manner of
your driving, or from alcohol on your breath.
Does New Jersey provide for a "Conditional License" if my license is suspended for a DWI (or any other offense)?
Although
some states provide for a conditional license to allow you to go back
and forth to work, New Jersey has not yet adopted such a measure. The
license suspension in New Jersey, for any offense, is an absolute
suspension - you may not drive for any reason while on the
suspended/revoked list. (See penalties for driving while suspended.)
How many breath samples must I give?
You
are required to give at least two breath samples. You must blow
sufficiently into the machine in order for the operator to get a valid
reading. Failure to give an adequate breath sample could result in your
being cited for refusal to take a alcohol breath test test.
What are the penalties for DWI?
The penalties for DWI are:
For a first offense
(i)
if the person's blood alcohol concentration is 0.08% or higher but less
than 0.10%, or the person operates a motor vehicle while under the
influence of intoxicating liquor, or the person permits another person
who is under the influence of intoxicating liquor to operate a motor
vehicle owned by him or in his custody or control or permits another
person with a blood alcohol concentration of 0.08% or higher but less
than 0.10% to operate a motor vehicle, to a fine of not less than $250
nor more than $400 and a period of detainment of not less than 12 hours
nor more than 48 hours spent during two consecutive days of not less
than six hours each day and served as prescribed by the program
requirements of the Intoxicated Driver Resource Centers established
under subsection (f) of this section and, in the discretion of the
court, a term of imprisonment of not more than 30 days and shall
forthwith forfeit his right to operate a motor vehicle over the
highways of this State for a period of three months;
(ii)
if the person's blood alcohol concentration is 0.10% or higher, or the
person operates a motor vehicle while under the influence of narcotic,
hallucinogenic or habit-producing drug, or the person permits another
person who is under the influence of narcotic, hallucinogenic or
habit-producing drug to operate a motor vehicle owned by him or in his
custody or control, or permits another person with a blood alcohol
concentration of 0.10% or more to operate a motor vehicle, to a fine of
not less than $300 nor more than $500 and a period of detainment of not
less than 12 hours nor more than 48 hours spent during two consecutive
days of not less than six hours each day and served as prescribed by
the program requirements of the Intoxicated Driver Resource Centers
established under subsection (f) of this section and, in the discretion
of the court, a term of imprisonment of not more than 30 days and shall
forthwith forfeit his right to operate a motor vehicle over the
highways of this State for a period of not less than six seven months
nor more than one year.;
For a second offense (DWI or
Refusal): $500, $100 DWI penalty; $50 Violent Crime Compensation Board
Penalty; $75 Safe Neighbors Assessment; 2 year loss of drivers license;
2 to 90 days in jail, 30 days community service. The DMV assesses a
surcharge of $3,000 payable over three years.
For a
third or subsequent offense (DWI only): $1,000, $100 DWI penalty; $50
Violent Crime Compensation Board Penalty; $75 Safe Neighbors
Assessment; 10 year loss of drivers license; 6 months in jail. The DMV
assesses a surcharge of $3,000 payable over three years.
What evidence does the prosecutor need to prove that I was Drunk Driving?
He
or she needs to prove that you were operating or in control of a motor
vehicle, that before you drove the car you consumed an alcoholic
beverage, and that at the time of the driving, the alcohol consumption
had an adverse affect on your ability to operate a motor vehicle. In
New Jersey, if your Blood Alcohol Content (B.A.C.) is .08% percent or
higher, then you are per se
driving while intoxicated. The officer must observe you for at least 20
minutes prior to administering the breath test. The breat test
operating machine's readings must survive a formula of tolerance.
What evidence does the prosecutor need to prove that I refused to take the alcohol breath test exam?
All
the prosecutor has to show (by a preponderance of the evidence) is that
you did not agree to take the test. If you remain silent or ask to talk
to a lawyer, that would be considered a "refusal". You would be given a
second chance to change your mind if you did that, but the offer to
take the breatalyzer isn't held open very long. You should always
immediately agree to take the test and give valid samples of your
breath. |
