Unless there is a fundamental flaw in the prosecutor’s case like an improper DWI stop, an absolute prerequisite to obtaining a dismissal of a DWI is avoidance of the blood alcohol content contained in the breathalyzer report. While this result might seem next to impossible for many who have just been charged with driving while intoxicated, this certainly is not the case. Breath test results are far from set in stone as holes can be found and/or created to prevent their use in a case. The key to such a result is, however, an aggressive and thorough defense. You might initially think that every law firm who defends DWI charges in NJ thoroughly explores any and all issues that have the potential for preventing the prosecutor from using your breath test readings at trial but, unfortunately, this is not our experience. The basic approach we have witnessed working the other side as prosecutors and/or when we have reviewed previous work on a case that we are now defending is for the attorney to read the initial reports provided by the prosecutor. Absent something glaringly wrong in what was provided, a guilty plea was entered or proposed by the defense counsel. This clearly is not our approach as illustrated by our extensive training in the Alcotest Breath Test device; we have at least four (4) attorneys among fifty or so in the state who have in depth training in every aspect of the machine. We undertake advanced training like this to insure that we know every potential angle to attack the breath report on behalf of our clients. Issues that have the potential for excluding the BAC readings include the following:
- Insisting that the Prosecutor Produce Every Report, Certification and Report Record that Is Discoverable.
- Demanding Production of the Digital Download Data.
- Errors Contained in the Paper Discovery or Digital Download.
- Invalid or Expired Breathalyzer Operators Card.
- Failure to Comply with the Twenty Minute Observation Requirement.
- Our Client Suffers from Acid Reflux, Gerd or some other medical problem that could have compromised the test.
- Improper Protocol with respect to the Informed Consent.
- Contamination of the sample or testing area by a substance that could invalidate the readings.