State v. Chun

In March 2008, the New Jersey Supreme Court decided State v. Chun, the most important DWI / DUI case in New Jersey history. Evan Levow represented the lead defendant in State v. Chun.

Chun has set the standard for DWI / DUI prosecution and defense for the state of New Jersey. It has established the procedures and protocols used by defense attorneys and prosecutors to deal with breath testing issues in New Jersey, and in some instances nationwide.

Levow DWI Law, P.C. is also the only law firm in New Jersey to own both the original breath testing machine, the Draeger® Breathalyzer 900, and the newer Draeger Alcotest® 7110 MKIII-C, the breath testing machine now used in the State.

Because of our involvement in State v. Chun, owning the machine, and because the lawyers in our firm have undergone the Draeger factory certification training on the Alcotest® 7110 MKIII-C, the attorneys of Levow DWI Law, P.C. are particularly qualified to represent clients charged with DWI / DUI in New Jersey.

The continuing defense and prosecution of DWI in New Jersey is based on the Chun litigation and its after-shocks.

One of the major issues developed in the litigation was the ability to obtain the downloaded data from the machine. This electronic information is resident in the individual Alcotest® machines, and is now downloaded on a bi-annual basis. The information should be obtained by the defense attorney and analyzed by an expert familiar with the data. Many cases have been resolved favorably based on proofs that the operation of the machine has been compromised in some way.

Other issues include a now mandatory twenty minute observation period prior to administration of the breath testing.

It is critical to have qualified defense counsel that understand the issues involving the Alcotest®. Because Evan Levow represented the lead defendant in Chun, Levow DWI Law, P.C. has a unique perspective on how to defend DWI cases in New Jersey after State v. Chun. Please contact us to discuss how we can help you.

New Jersey had been using the Draeger Breathalyzer® for several decades before seeking an automated machine, one that reported results not dependent on the machine operators. In 1998, New Jersey began testing different machines, and by 2002, the State was ready for a pilot test of its new machine, the Alcotest®.

Pennsauken Township ran over 350 tests on the new machine, and the State used these tests as the basis for a scientific reliability hearing on the Alcotest® in a case called State v. Foley. Foley was litigated in the Camden County Law Division, and resulted in a finding of reliability in a published opinion, State v. Foley, 370 N.J.Super 341 (Law Div. 2003).

However, because the State did not seek the review of an appeals court, based on court rules that require an appellate level determination of the scientific reliability of new technology, or a new device, Foley was only controlling as the law in Camden County, not the rest of the state.

After the State made changes to the machine as suggested in Foley, it began to roll out the machine throughout the 21 counties in New Jersey in 2005.

As drivers started getting arrested on the new machine, a group of attorneys challenged the machine, again, claiming that it was not reliable, and the reliability finding in Foley didn't apply throughout the state. An appeals court agreed that a new hearing had to be undertaken, and the New Jersey Supreme Court took control of the case known as State v. Chun, et al.

The Supreme Court named a Special Master to hear evidence and make findings and recommendations to the Court, so that it could determine the scientific reliability of the Alcotest® and whether it could be used throughout New Jersey.

The case lasted through March 2008, more than three years, when the Supreme Court determined that with certain safeguards, the machine was in fact reliable. State v. Chun, 194 N.J. 54, cert. den. 129 S.Ct. 158 (2008).

During the litigation, several critical issues were raised by the defense team and by the defense experts. However, despite these issues, the Supreme Court found the machine to be reliable.

Ironically, based on theories developed in the Supreme Court litigation, the breath test results in the underlying case of State v. Chun were suppressed by the judge hearing the case.

After the Supreme Court's decision in the reliability hearing, and after other legal issues in the case were addressed, the case of State v. Chun was sent back to the New Brunswick Municipal Court for trial. During the officer's testimony as to how he conducted the breath testing of Ms. Chun, he stated that he changed the mouth piece after Ms. Chun's fifth blow into the machine. Testing protocol requires that the mouth piece be changed after each blow into the machine. As a result of this error, alone, the trial court excluded the breath test results from evidence, and Ms. Chun was acquitted of the per se DWI.