Defenses to DUI Charge with 20 Minute Observation Rule
Fighting DWI Charges Throughout NJ
“Challenging The 20 Minute Observation Period”
2o minute observation rule
Under New Jersey law, N.J.S.A. 39:4–50, the arresting officer is required to observe you, in a room, by yourself, for 20 minutes before administering the Alcotest. The reason for this is that if a defendant chews gun, smokes a cigarette, burps, eats something, etc. this will affect the defendant’s mouth alcohol levels and could create a false reading on the breath testing machine.
If this 20 minute period is interrupted for any reason, (maybe you used the bathroom or the officer left the room) then the officer must start the 20 minute period over. If he or she fails to do that, the reading is not reliable and should be thrown out of court.
A skilled DWI defense lawyer will look at many pieces of evidence to determine if the 20 minute period was followed properly. This will include the Alcohol Influence Report (known as the “AIR”) which documents the arrest time and the time that the defendant is first placed on the breath testing machine. In addition, we will look at the CAD report where the officers radio in and document the times that they responded to the traffic stop, the time they got back to the station, and, in some cases, the times that they started and ended to 20 minute observation period. Finally, if a video is provided from the police car or the processing room, we can compare those times to the AIR to see if they match up properly.
In addition to the 20 minute observation period, we will also be examine the evidence for other possible defenses such as the portable electronic devices which must be removed from the room prior to the breath samples being taken. This includes the police officer’s phone, radios, smart watches, etc. Also, the police officer must check the defendant’s mouth for any foreign objects before taking a breath sample and they also must use a new mouthpiece for each breath sample taken so that there is no residual alcohol left in a used mouthpiece.
Getting an Expert Report to Challenge the Breath Reading
Sometimes, we are able to challenge the State’s evidence and raise a 20 minute observation issue and the prosecutor agrees and suppresses the breath reading (breath test results). In other cases, the prosecutor may request an expert report. The expert is a retired police officer who is certified on the breath testing machine in NJ and has a ton of experience in prosecuting DWI cases for the State (as a police officer) who has now retired and transitioned to be a defense DWI expert. The expert will review the discovery evidence in the case (police reports, videos, breath testing documents) and draft an expert report challenging any issues they see with the State’s evidence. That report will then be provided to the prosecutor in an attempt to negotiate a better outcome in court.
If the prosecutor accepts the report and suppresses the breath reading, then that’s the goal. If, however, they don’t agree, then the case can be scheduled for a hearing where we can challenge the evidence in court and the defense expert can testify to their expert report. Then, the Judge will make a ruling on the admissibility of the breath reading.
The videos below provide additional DWI defense strategies that we use to beat DUI charges against our clients in NJ:
Challenge the Initial Motor Vehicle Stoppage
Challenge the Field Sobriety Tests
Challenge the Alcotest 7110 machine itself
“This video is an informative overview of DWI charges:”
DWI Defense Lawyers Available Now to Assist You
Fortunately, all of these New Jersey DWI and DUI penalties can potentially be avoided if you’re ready to fight your case. We have created our own advanced DWI defense system that we use to beat these charges.
