Written by attorney Joshua H. Reinitz

The DWI applications and implications of State v. Green

Due to an effort worthy of this post's title a man in Middlesex County is today enjoying a victory in the Appellate Division in a case he defended and appealed twice without a lawyer. It is always essential to believe in positive outcomes and work towards them. I always strive to find those positive outcomes for my client and will not stop until every legal avenue is pursued and fire is extinguished.

Yesterday the Appellate Division decided State v. Green, (full text found here In Green the defendant, without a lawyer, attempted to defend a speeding ticket on Route 18 in East Brunswick. To do so he requested very specific discovery from the prosecutor regarding the instrument used to detect his speed as well as the training the officer had received. This request was largely denied by the Municipal Court Judge.

Mr. Green's case was then tried before the Municipal Court Judge who found him guilty of speeding. After trial he appealed and after a review by the Superior Court - Law Division his conviction was upheld. He then appealed to the Superior Court - Appellate Division where he received the justice he sought. His conviction was overturned and the case was sent back for a review by the Law Division and potentially a re-trial in Municipal Court.

I know what you are thinking: "Great for Mr. Green, but what does that have to do with me?" Here's what: If you are charged with a DWI you were likely first stopped by the police for a motor vehicle offense, often speeding. The court in Green has now opened the door to new ways to attack that speeding ticket. An experienced attorney can utilize this decision to try to demonstrate that the officer did not have a sufficient basis to stop your vehicle. If successful you can likely suppress the DWI evidence and have your case dismissed.

The more important part of the case for those charged with DWI and their attorneys is whether a court can simply take notice of the reliability of a device without a hearing. The Appellate Division upheld the principle announced in State v. Boyington 153 N.J. Super. 252 (App. Div. 1997) that unless an appellate court has found a machine scientifically reliable, the State must prove the scientific reliability of the machine in each instance by providing expert testimony. The Appellate Division sent Mr. Green's case back to the Law Division for such a hearing.

Unlike radar devices, which have been found scientifically reliable, the device used against Mr. Green was a specific brand of laser based device that has not received approval from New Jersey courts. Similarly, one of the hottest issues I am coming across in DWI cases is whether the State can substitute any NIST certified Digital Temperature Probe for the Supreme Court approved Ertco-Hart Probe. There is presently a split on this and the leading case (State v. Holland) is currently pending before the Appellate Division.

A good attorney may be able to make the analogy and persuade a judge that the Green decision is applicable to the digital temperature probes because the probes are devices that have not been found to be scientifically reliable and therefore cannot be used as substitutes in calibrating the Alcotest. A successful argument on those grounds would likely lead to the suppression of the Alcotest readings. This could lead to a significant decrease in penalties especially for first offenders or even a dismissal if the officer's other observations cannot prove the case beyond a reasonable doubt.

It is vitally important when you chose an attorney that you find one who is constantly keeping abreast of new changes in the law as they happen frequently and can completely alter the landscape of your case.

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