In New Jersey, the blood alcohol content (BAC) reading of an Alcotest Breathalizer can result in a dead-bang conviction for drunk driving if its reading of at least 0.08% is admitted into evidence at trial. It is called a per se violation, and it can nail you if the state gets all of its proofs right.
In order to get the breath readings into evidence, however, the state must jump through several procedural hoops. This includes showing that the test was administered according to official procedure. This is where your cell phone comes in.
How Can Having My Cell Phone Be a Defense?
The radio frequency interference (RFI) of these phones can affect the readings generated by the machine. Therefore, the "official procedure" set forth in a case called State v. Chun includes the removal of cell phones from the testing area.
It matters not whether the RFI actually affected the reading; it matters only that the "official procedure" was not followed if the phone was not removed before the test. For this reason, if you were arrested for drunk driving in New Jersey and had your cell phone with you, ask yourself the following questions:
- Did the officer ask if I had a cell phone with me?
- If so, did he/she take it from me and remove it from the testing area?
If the answer to either of these questions is "No," then it may well be possible to get the Alcotest reading thrown out. This does not mean that your entire case will be dismissed, but it does make it much more difficult for the state to prove its case, especially if the Field Sobriety Test was not conducted properly.
So What Do I Do?
If you have been charged with drunk driving in southern New Jersey, please feel free to call me at 856-432-4113 or contact me through this site to schedule a free consultation.
If you are looking for more information on New Jersey's drunk driving law, then download my free book, How Much Trouble Am I In? A Guide to New Jersey Drunk Driving Law.