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DWI Defendants: No Problem with No AIR

Posted by Richard DeMichele | Mar 26, 2015 | 0 Comments

NJ DWI defendants are entitled to their breath reading “upon request”

Two weeks ago, the New Jersey Appellate Division, in State v. Sorensen, resolved another New Jersey DWI issue in favor of the State. When a defendant breaths into the Alcotest to supply a breath sample, the machine generates a report known as the alcohol influence report or “AIR.”

In State v Chun, the Court required the police to provide the AIR (containing the blood-alcohol reading) to someone who has been charged with a DWI at the time the test is completed. Providing the defendant with a copy of the AIR at the time that DWI charges are issued is very commonplace. I have had a long-standing belief that police provide a DWI defendant with a copy of the AIR at the time that the charges are being issued because they believe a DWI defendant who sees the blood-alcohol reading will not retain an attorney and just plead guilty. In Sorensen, the defendant was not given a copy of the AIR at the time charges were issued against him. Ms. Sorensen retained an attorney and the attorney sought to have a blood-alcohol reading suppressed because the police failed to provide Ms. Sorenson with a copy of the AIR at the time he was being charged. The Law Division suppressed the Alcotest reading, but the state appealed the Law Division's decision. The Appellate Division then considered the issue of whether the police officer's failure to provide a copy of the AIR to the defendant before she left the police station should result in the suppression of the Alcotest results. In reversing the Law Division decision, the Appellate Division held that the text in State v. Chun which appeared to require the operator to give a copy of the AIR to the arrestee was, in actuality, part of a technical discussion and not a legal discussion. Specifically, in referring to the Supreme Court's decision in Chun, the Appellate Division said, Our Supreme Court's comment that the “operator must retain a copy of the AIR and give a copy to the arrestee” was similarly part of a technical discussion, not a legal discussion. The comment came in the section of the Court's opinion addressing “How the Alcotest Works.” . The Court made the comment as part of its “description of the manner in which the device operates in practice,”discussing “[o]ne of the claimed advantages of the Alcotest, as compared to the breathalyzer, [namely] that it is not operator-dependent.” The Appellate Court's decision further noted that no such requirement is mentioned in the Chun Court's extensive order specifying conditions under which the AIR is admissible as evidence of a defendant's BAC. The Appellate Division also held that the Chun Court's order did not dictate when the AIR had to be produced. The Court's decision specifically acknowledged the countervailing command of the Legislature. N.J.S.A. 39:4-50.2 provides that the AIR be provided to the tested person “upon request.” Thus, the court held that the Supreme Court's comment in Chun did not reject N.J.S.A. 39:4-50.2(b)'s standard for when a police officer is required to provide a copy of the results of a breath test. Finally, noting that the Chun Court did not address whether disclosure of the AIR on request rather than in the police station would require suppression, the Appellate Court held that suppression of the AIR is not an appropriate remedy in the absence of prejudice. The Court reasoned that, Other than advising a defendant of the rights expressly set forth in N.J.S.A. 39:4-50.2(b) and (c), “the statute sets forth no other affirmative duties on the part of the police.” The court also reasoned that the “significant costs of suppressing valid BAC results, the limited benefits of the new obligation defendant seeks to impose, and her failure to show prejudice” made suppression “unwarranted.” If you or a loved one needs strong representation in a municipal court in New Jersey, contact the DWI defense lawyers at DeMichele & DeMichele today. We are here to defend the charges against you. Contact us now for your confidential and free initial consultation. You can also reach us by telephone (856) 546-1350. Don't just plead guilty and risk your driving privilege or driving record!

About the Author

Richard DeMichele

Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.

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