New Jersey’s Alcotest’s Admissibility: The “Clear & Convincing” Burden of Proof

While people want to know their attorney’s trial strategy in a DWI defense, its important to remember that a lot of these drunk driving cases are won prior to trial with pre-trial motions which seek to exclude evidence that then make it virtually impossible for the prosecution to establish guilt beyond a reasonable doubt.

Many of these motions are filed based on the 4th and 14th Amendments to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. These motions to suppress evidence are based on a person’s constitutional right against illegal searches and seizures and focus on the reasonable suspicion or probable cause for initial police stop and the probable cause to arrest. The evidentiary standard in a Motion to Suppress evidence is “by a preponderance of the evidence.” It’s important to understand that the burden of proof at pre-trial motions is different than the burden of proof at trial. Your attorney must be aware of these different evidentiary standards to effectively defend your case.

While these constitutional violations may be an issue in a DWI case, its also important to focus on the reliability of the chemical test which calculated a person’s Blood Alcohol Content (BAC)).  In a New Jersey DWI case, a critical piece of evidence is the result of the Alcotest. While New Jersey uses the Alcotest, Pennsylvania still relies on the Breathalyzer for drunk driving prosecutions. In more and more cases, however, Pennsylvania is using the blood test to determine Blood Alcohol Content (BAC).

When it comes to the admissibility of the Alcotest in New Jersey, the evidentiary burden of proof is “clear and convincing.” This is a lower burden of proof than guilt beyond a reasonable doubt but a higher burden of proof than “by a preponderance of the evidence,” the standard at motion to suppress evidence. In order to meet this standard, the prosecution must prove that it is substantially more likely than not that the allegation or evidence is true. The evidentiary standard of “by the preponderance” only requires that the prosecution show that it is more probable than not that the evidence is true.

In New Jersey, the prosecution must establish by a clear and convincing standard that the Alcotest device met all of the following:

  1. Was in working order and had been inspected according to official procedure;
  2. The operator was properly certified to operate the machine at the time that he did; and
  3. The test was administered according to official procedure.

The New Jersey Supreme Court in State v. Chun specifically reaffirmed this evidentiary burden of proof regarding the admissibility of the Alcotest. The court further stated that test results are inadmissible unless the prosecution satisfies these requirements.

Unlike the Breathalyzer, the Alcotest doesn’t allow the operator to proceed if the machine does not receive accurate information from the operator or the machine for instance does not correctly perform a “blank air test”. In addition, the machine must also heat the simulator solution to 34 degrees centigrade or the device will not accept any samples to even perform the blank air test or the actual breath test. Finally, if the Infrared (IR) and the electro-chemical (EC) energy readings are not within an acceptable range of each other the Alcotest’s software will find that the results are not accurate or invalid. Remember that unlike Pennsylvania’s Breathalyzer, New Jersey’s Alcotest uses 2 different technologies (Infrared and Electro-chemical) to arrive at a BAC level.

While the Alcotest device performs a lot of self-checks it is still important that the operators remove all other electronic equipment from the testing room which include cell phones and observe the individual for 20 minutes prior to administering the test. If these procedures aren’t obeyed the court will find that the results are inadmissible even if the machine itself finds the results reliable and accurate. In closing, if you have questions about DUI in Pennsylvania or DWI in New Jersey call our office. I also encourage you to read my book on DUI.

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