On March 17, 2008, the New Jersey Supreme Court (the highest New Jersey Court) decided the case of State v. Jane H. Chun. The Chun-Defendants challenged the reliability of the “Alcotest”, a breath-testing machine that replaced the “Breathalyzer.” The New Jersey Supreme Court disagreed with the general defense thrust, and found that the technology is generally reliable. The Supreme Court relied in part, on the findings of Judge King, a retired Judge who was referred to as a “Special Master.” The Court did however, impose a number of procedural safeguards.

I intentionally did not include my clients in the Chun litigation. My logic was this: a challenge to the general reliability of the machine would be unsuccessful, and the only benefit in the end would be to the State and not the defense. The benefit(s) to the State as I reasoned would be: 1. establishing the reliability of the machine, and 2. ironing out the machine quirks and defense issues. My reasoning was that the defense was better off operating in a state of ambiguity – in other words, the State needed the clarity, not the defense. I achieved great success in the Alcotest cases I intentionally kept at the lower court levels. I could have brought my clients into the fold of the Chun litigation, but believed that they would be better served by remaining in the lower courts. The success I had in Alcotest cases included an outright dismissal, suppression of Alcotest readings, and recently an acquittal after trial in a Union County Municipal Court.

The Chun litigation served to bolster the State’s use of the Alcotest, and clarified for the State, the defense challenges. My opinion is that the defense (i.e. the defendants) would have been in a better posture operating in a state of ambiguity because the burden of proof rests squarely on the State – the defense has no burden of proof.

This is not to say that there are no defenses to Alcotest cases. Through a careful reading of Chun, and a creative and bold application of the Court’s ruling, successful challenges are possible. I look forward to the challenges that lie ahead and remain committed to my representation of DWI defendants.