Written by attorney Randolph H Wolf

New Jersey DWI Law: Breathalyzer Tests

The New Jersey Drinking and Driving Statute, N.J.S.A. 39:4-50, explicitly discusses the use of a breath-alcohol test to determine a suspected drunk driver's blood alcohol concentration (BAC). Under New Jersey Law, operators of motor vehicles give their "implied consent" to submit to a breath testing device when required. Thus, if you drive in the State of New Jersey, you must submit to a breathalyzer when required to by the police. If not, you will be charged with Refusal to Submit to a Breath Test (which includes the same penalties as driving while intoxicated).

The breathalyzer test is the primary method through which law enforcement accurately determines a suspected intoxicated driver's blood alcohol content. In Romano v. Kimmelman, the New Jersey Supreme Court held that the responsibility for establishing all of the various conditions of admissibility of breathalyzer results is to be allocated to the State. Thus, it is the municipal prosecutor's responsibility to establish the requisite the evidential proofs, such as: the breathalyzer machine functioning properly at the time; the machine was in proper working condition; and the test was correctly administered. The State must also show that the individual that administered the test was authorized to do so. The New Jersey Attorney General is required to approve the methods of testing as well as the training and qualifications of persons who administer breathalyzer tests. Individuals who seek to administer these tests must be certified to do so. The certification is basically a license to conduct breathalyzer tests on drivers in the State of New Jersey. This certification or license may be revoked by the Attorney General. Moreover, the license has an expiration date. In fact, the breathalyzer operator's certificate is only valid for the year in which is was issued and the following two years. Finally, breathalyzer operators are required to undergo periodic retraining and re-certification.

As a result, there are many potential challenges to a driving while intoxicated charge. Although plea bargaining DWI charges is illegal in New Jersey, the charge may be dismissed entirely if there are issues surrounding the traffic stop, proof of intoxication, or proof of operation of the vehicle. Therefore, it is important to consult with an experienced DWI lawyer when facing these serious charges.

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