We recently had the opportunity to represent a gentleman who had been charged with a first offense DWI after being pulled over on the Garden State Parkway by a New Jersey State Trooper as a result of driving at an excessive rate of speed that reached 115 MPH. After administering the Standardized Field Sobriety Tests, the law enforcement officials believed that they had the requisite probable cause to arrest our client and bring him to the local barracks for the administration of the Alcotest. Our client blew a .12%, which exposed him to at least a 7 month loss of license and other penalties associated with a first offense DWI. Upon reviewing the discovery, however, we were able to identify inconsistencies in the Alcotest report. Namely, the time of the arrest in relation to the time of the administration of the Alcotest did not provide the necessary 20 minutes of observation of our client prior to the administration of the Alcotest. Here, the “twenty-minute issue” is fatal to the State’s case because the State must establish by clear and convincing evidence that the proper procedure was followed in administering the test. The “twenty-minute issue” is a significant one because it is designed to view the suspected intoxicated driver for that period of time to ensure that the person does not belch, burp, or regurgitate- all bodily functions proven to contain residual alcohol that can artificially skew a breath test. As a result of the issue, our client received a 3 month loss of license and no ignition interlock device. Furthermore, his accompanying tickets were dismissed.
State v. R.E.