Presumably you are charged with Refusal and with DWI. There are only certain categories of people who are not subject to the requirement to provide a breath sample, but having an asthma attack on the day in question could provide a viable defense.
New Jersey DWI Attorney - Breathalyzer - Asthma and other medical conditions - By Patrick Amoresano Asthma and other medical conditions can certainly impact a person's ability to comply with Breathalyzer test requirements and results. Consult a qualified NJ DWI attorney immediately, preferably one who has served as a former Municipal Prosecutor and know the ropes.
As noted by my colleague it would seem that you have at least two summonses: one for dwi and one for refusal. While it is a challenge it is possible to successfully defend a refusal case it is not impossible. The issues will revolve around being able to prove your condition and/or to determine if there was a problem with the alcotest machine. You will need to speak with an attorney who is experienced in this area of law and is familiar with these types of cases. You should not post any further details regarding this matter on the Internet and should only discuss the matter with your attorney.
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The medical condition may defeat the refusal. Minimum.Vol. read outs can be so defended under Chun. However the observation case on the DWI will be difficult as well. Much more information is needed to ecvaluate this case.
I agree with Mr. Cheser that the analysis will start with the observation. The State can convict you of 2 ways. The first is the machine, the second is by expert testimony of the police officer that he "observed" you and based on the proper administration of the standardized field sobriety tests, has determined that you were operating your vehicle while intoxicated. I do agree with my collegues that the Asthma attack could sustain a defense on the refusal. At a minimum, a new 20 minute observation would be required based on coughing.
Law Offices of James A. Abate Jabatelaw.com (732) 412-2364
Your asthma is a serious issue which may affect your ability to adequately provide the 1.5 liters of air required by the Alcotest 7110. Your Doctor's certification is a good start. But any lawyer worth their salt will want to order a copy of your certified medical records for use at trial. This is extremely important because under N.J. Evidence Rul 803b6, medical records, which are certified. are self-authenticating, and no hospital personnel are needed for court. However, in most cases, a prosecutor will not accept these reports without an expert's report, and if he or she does, they will usually only offer to dismiss the refusal. You still have the field sobriety tests to contend with.
When it comes to field sobriety tests, theer are two types, the "Statndardized Field Sobrity Tests" (SFST's) and no standardized. To be standardized means to be done in the same manner everytime, using validated cues of impairment to assess performance. There are three SFST's: the Horizontal Gaze Nystagmus test (HGN, in which the officer looks for an involuntary jerking of the eyes, Walk and Turn, in which the officer assesses your ability to perform tandem walking; and the One Leg Stand, which assesses the ability to stand onb one foot for approximately 30 seconds. Non-standardized tests, include teh Romber Balance Test, Finger To None, Finger Dexterity, ABC's and Counting Backwaards. As stated before, there are non-standardized and are VERY subjective.
What you need is an attorney who knows DWI and Refusal defense in NJ. I recommend hiring someone who specializes in DWI defense and maybe even someone who limits their practice to DWI defense.
I limit my practice to DWI defense and have represented people, successfully, throught the State. I am a certified Field Sobrity Test Instructor as well as a Draeger certified Alcotest 7110 operator. Please give us a call at 732-286-2700 for a free consultation to discuss your case.
It is important to note, that DWI AND REFUSAL CASES CAN BE WON!
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