Judge's Ruling on unreliable Breath-Test Indicator could affect Atlantic County DWI Arrests

This week something very important in DWI law took place when Judge Max Baker overturned a driving under the influence conviction this week. Judge Baker found that only one brand of thermometer probe should be used to determine the reliability of the breath-test machine.The decision, which covers the entire county, could throw out the results of any machine using another probe, lawyers say. State Police, who regulate the Alcotest breath test, could not immediately say how many police departments in Atlantic County use the component cited by the judge as unreliable.

Municipal prosecutors in Atlantic county will look to Prosecutor Ted Housel in determining what happens next. "I'm sure Mr. Housel will evaluate the issue and give a directive on how to handle future prosecutions in these matters," said Christopher Lipari, the Galloway Township prosecutor who got the conviction that Baker overturned this week. In that case, Emilio Rivera was pulled over Dec. 31, 2009, while driving on the Garden State Parkway. He was eventually administered the Alcotest at the Bass River Barracks, and his case heard in Galloway Township Municipal Court. But after his conviction, attorney Alan Lands appealed on several issues, including the probe manufacturer and that the room where the test was given had not been cleared of all other electronic equipment, as mandated so as not to interfere with the results.

While Ertco-Hart is independently tested, Control tests its own equipment. "If find that that is a critical error," Baker said.

Evan Levow, who argued the state Supreme Court case, said he was glad that Baker detailed why the Control Company's probe should not be an alternative."Not only do you have to meet these standards, it has to be verified independently," he said. Levow said it's likely another company's probe will eventually be approved. Levow said that wouldn't be a problem, as long as the same standards are applied."It looks like Judge Baker was trying to follow the Supreme Court's order," said John Menzel, who also argued the Supreme Court case.

Months of hearings on the Alcotest named only one probe, the Ertco-Hart, he said."Ertco-Hart was not litigated all that much because it's a fine piece of equipment," Menzel said. "The use of the Control Company was never examined, and there was never any consideration of that device (in the case)."

The State Police could not immediately comment on which municipalities have the Ertco-Hart and which have replaced that with the Control Company's probe. Control did not return a request for comment.If the Alcotest results are lost, that does not automatically throw away any DUI cases in the county, Verno said. The prosecutor still would have the field-sobriety test and the officer's testimony."It doesn't necessarily negate all previous and future cases," she said. "But it does create some significant issues."

To learn more about Alcotest and New Jersey DWI laws, please visit the New Jersey DWI laws page a of our Criminal Law Website.

State v. Brown - A Summary

As a result of an investigation into several robberies and thefts, the defendant was implicated in those crimes. On January 1, 2005, five complaints were prepared against the defendant. Four of them sought authorization to arrest the defendant for various offenses and the fifth complaint charged him with resisting arrest and listed the address of his girlfriend. At the time of the defendant’s arrest, no judicial officer had reviewed the complaints or authorized the defendant’s arrest. That evening, officers went to the girlfriend’s apartment to arrest the defendant and when the police knocked, she opened the door and the defendant fled through a window onto an adjacent roof. Following a twenty-minute standoff, police convinced the defendant to come down and they then arrested him. The next day the defendant had his Miranda rights read to him and he initialed, signed a waiver form and then made incriminating statements. A grand jury indicted the defendant and others for multiple counts of armed robbery and numerous other offenses. The defendant’s motion to suppress his statements, which argued 1) that his arrest was unlawful because the warrants were not authorized until after the arrest , 2) that his subsequent statements were thus inadmissible, and 3) that he did not waive his Miranda rights, was denied.

The New Jersey Supreme Court held that at the time the defendant fled through a window onto a roof next door, the police had engaged in no misconduct; thus, there was no seizure of any sort in the apartment. When the police arrested the defendant after he came down from the roof, they did not need an arrest warrant because they had probable cause to arrest him in a public place (1) for armed robbery committed outside their presence and (2) for resisting arrest, which they observed. Arrest warrants and warrantless arrests in public must be supported by probable cause to believe that a crime has been committed and the person sought to be arrested committed the offense. The statements of The defendant’s co-defendants implicating him in armed robberies meet that test. The parties do not dispute the existence of probable cause. They focus on whether the arrest was lawful in light of the defective arrest warrants. Without a warrant, the State must prove the overall reasonableness of an arrest.

During an ongoing investigation, police did not need a warrant to knock on the door of the defendant’s girlfriend’s apartment. The defendant fled out the window immediately upon learning of the police presence. The defective warrants are irrelevant here. By moving to a public place, the defendant transformed the situation from an arrest in a private apartment, where police would need a warrant, to the public arena, where the police could arrest him without a warrant based on probable cause that he had committed armed robbery. Also, after jumping onto a roof, the defendant created a police standoff in a public place, posing a risk to officers and the public. The police did not need a warrant to arrest for resisting. Substantial, credible evidence in the record supports the finding that the defendant voluntarily waived his Miranda rights. Thus, the statements he made while in police custody were admissible at trial.

To learn more about this and other criminal cases, please visit my New Jersey criminal lawyer site.