DWI defense and Twenty Minute Observation Requirement

New Jersey law requires that a defendant arrested for driving while intoxicated must be observed for a continues, uninterrupted period of at least 20 minutes prior to the administration of the Alcotest or breathalyzer as it is better known. This observation period ensures that the DWI suspect does not regurgitate, burp, place any foreign objects in the oral cavity, etc. It is the State’s burden to show that this requirement has been met. see State v Chun.

Although the 20 minute requirement would appear to be relatively simple to comply with, as a NJ DWI attorney, I have had numerous cases where the State was forced to concede that the Alcotest results were invalidated as a result of the police not observing my client for the required period.

In a recent case decided by the Law Division, the court reiterated the requirement and went further by establishing guidelines for law enforcement to follow during the course of a DWI arrest to ensure compliance with the rule. State v. Filson, 409 N.J. Super. 246 (Law Div. 2009), is now the controlling case for all parties involved in DWI prosecution as it pertains to this requirement. This includes defendants, DWI defense lawyers, judges, law enforcement, etc.  

I have reviewed this case carefully and come to several conclusions. First, I have always made it a practice to request as much time identifying discovery from the state in driving while intoxicated cases. This includes. motor vehicle recordings, CAD reports, radio dispatch recordings, station or holding cell video. Basically anything that may have a time stamp could illuminate inconsistencies in the arresting officers report. Secondly, it is important to go over the details of the arrest carefully with your client. When discussing this issue with defendants, it is often the case that they recall the observing officer leave the room during some point during the 20 minute period. If they do so, the period must begin anew.

A frequent fact patter I see is what I call hand off cases. This is when someone other than tha arresting officer administers the test. The court in Filson was somewhat vague on this point, but it appears that a combined observation period may be acceptable. However, a meaningful break in the period will not be tolerated. I often find that these breaks occur in hand off cases.

Another interesting issue is whether this requirement can include time transporting the DWI suspect back to the station. The court in Filson framed this issue as a totality of the circumstances consideration, suggesting that if certain factors were present, the state may be able to use this time period towards the twenty minutes. As a DWI and criminal defense lawyer, I suspect that the good DWI attorneys will have a field day with cross-examination of the officer claiming this time period as part of the required period.

I have just scratched the surface regarding one specific element of the state’s proofs. Even if the readings ares invalidated, it does not mean that the defendant can’t be found guilty. There are two ways the state can prove its case, observation and BAC or blood alcohol content. A successful twenty-minute observation argument will only suppress the BAC. The state may still seek to prove that the defendant was DWI based on the observations. But once the readings are invalidated, the window is opened, and good things start to happen for the defendant. In some cases, this could mean an immediate reduction of the period for which the defendant could lose their driving privileges. A successful argument could result in a 9 month reduction. This is significant. For more information on DWI offense, be sure to visit my comprehensive driving while intoxicated practice center


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