Challenging the Alcotest in New Jersey: The 20-Minute Observation Rule Explained
Before administering a breath test in New Jersey, police must continuously observe you for exactly 20 minutes. If they fail to do this, or if you burp or vomit during this time, the Blood Alcohol Concentration (BAC) results may be thrown out of court.
Being arrested for a DUI in New Jersey is a terrifying experience, and when the police tell you that your breath test showed you were over the legal limit, it is easy to feel hopeless. However, a high Blood Alcohol Concentration (BAC) reading is not an automatic conviction. The machine used by police across the state, the Alcotest 7110, is highly sensitive. To prevent false readings, the state imposes incredibly strict rules on how officers must administer the test.
One of the most powerful defenses in a New Jersey DUI case is the 20-minute observation rule. Whether you are scheduled to appear at the Newark Municipal Court, Newark or the Jersey City Municipal Court, Jersey City, the prosecutor must prove the police followed this protocol flawlessly. If they made a mistake, an experienced attorney from our US Lawyers Directory can file a motion to suppress the evidence. This guide explains how the observation rule works and how violations can save your driver's license.
The State v. Chun Precedent
The rules governing breath testing in New Jersey were cemented by the landmark case State v. Chun, 194 N.J. 54 (NJ Supreme Court 2008). In this massive decision, the New Jersey Supreme Court scrutinized the Alcotest 7110 machine and ruled that it is generally scientifically reliable, but only if police strictly follow mandatory procedures.
The most critical procedure established by Chun is the 20-minute observation rule. The court mandated that before an officer asks you to blow into the tube, they must watch you continuously for 20 uninterrupted minutes. The purpose of this rule is to ensure that no "mouth alcohol" contaminates the breath sample. The machine is designed to test deep lung air. If there is raw alcohol lingering in your mouth from a recent sip of beer or from stomach acid coming back up into your throat, the Alcotest will read that raw alcohol and produce a falsely high BAC reading.
What Breaks the 20-Minute Rule?
The 20-minute observation must be completely uninterrupted. The officer cannot leave you alone in the holding cell, walk away to make a phone call, or step out to use the restroom. Furthermore, certain physical actions by the suspect will immediately invalidate the 20-minute period and require the officer to restart the clock from zero.
Burping and Hiccuping
If you burp, belch, or violently hiccup during the observation period, it brings stomach gases and potentially raw alcohol vapor back up into your mouth. Under New Jersey law, if an officer hears or sees you burp, they must completely restart the 20-minute observation clock. If they simply ignore the burp and test you anyway, the resulting BAC reading is scientifically compromised and legally challengeable.
Vomiting or Regurgitating
Vomiting or "wet burping" (regurgitation) is a major issue for breath testing. If stomach contents enter your mouth, the raw alcohol in your stomach will heavily contaminate the breath sample. If you vomit, the police must allow you to rinse your mouth with water, and then they must wait a completely fresh 20 minutes before attempting to use the Alcotest. Failure to restart the clock is a direct violation of the Chun protocols.
Using Bodycam Footage to Prove Violations
In the past, arguing about the 20-minute rule was often a "he-said, she-said" battle between the driver and the police officer. Today, defense attorneys use technology to uncover the truth. Police officers in New Jersey are required to use body-worn cameras and booking room surveillance cameras. Your attorney will subpoena the video footage from the local police department.
By reviewing the booking room video, your lawyer can mathematically prove if the officer left the room, turned their back on you for extended periods, or ignored a visible burp. If the video shows the officer was typing on a computer facing away from you or left you alone for three minutes, the "continuous observation" requirement is broken.
Rendering BAC Inadmissible
If your attorney successfully proves that the 20-minute rule was violated, they will file a motion to suppress the Alcotest results. The judge in Municipal Court will hold a hearing. If the judge agrees the protocol was breached, the BAC reading (such as a 0.12%) is thrown out. Without a BAC reading, the prosecutor cannot convict you of a "per se" DUI under N.J.S.A. § 39:4-50. They will be forced to rely entirely on the officer's subjective observations (like field sobriety tests), which are much easier to dispute, often leading to reduced charges or a complete dismissal.
How Much Does a DUI Defense Cost?
Fighting a DUI in New Jersey requires significant legal work and review of technical evidence.
- Attorney Fees: Retaining a specialized DUI defense lawyer typically costs between $3,500 and $7,500. If the case requires a full trial with expert witnesses, fees can exceed $10,000.
- Expert Witness Fees: If the video is ambiguous, you may need to hire a former Alcotest operator or forensic toxicologist to testify about the breach of protocol. These experts generally charge $1,500 to $3,500 for a report and court appearance.
How Long Does the Process Take?
New Jersey Municipal Courts aim to resolve DUI cases within 60 days, as dictated by state directives. However, obtaining booking room videos, filing motions to suppress, and scheduling specialized hearings can extend the timeline. A complex case challenging the Alcotest protocols typically takes 4 to 8 months to reach a final resolution.
Frequently Asked Questions (FAQ)
Does chewing gum break the 20-minute rule?
Yes. You cannot have anything in your mouth during the 20-minute observation period, including chewing gum, mints, tobacco, or even a tongue ring. The officer must instruct you to remove all foreign objects from your mouth before starting the clock.
Can the officer observe me while driving me to the police station?
Generally, no. The New Jersey courts have ruled that an officer who is driving a patrol car and looking at the road cannot simultaneously conduct the rigorous, continuous visual observation of a suspect required by law. The 20 minutes usually must occur in a controlled environment like the booking room.
What if I was perfectly sober but still blew over the limit?
If you had not been drinking, a false positive could be caused by mouth alcohol from mouthwash, medical conditions like severe acid reflux, or a completely botched Alcotest calibration. Investigating the 20-minute rule is usually the first step to uncovering a false positive.
Can I get a jury trial for my DUI in New Jersey?
No. In New Jersey, a DUI is classified as a severe traffic offense, not a criminal indictable offense. Therefore, you do not have the right to a jury trial. Your case will be decided solely by the judge in the local Municipal Court.
If the breath test is thrown out, am I automatically found not guilty?
Not automatically. Even without the BAC reading, the state can attempt to convict you based on the officer's testimony regarding your driving behavior, slurred speech, smell of alcohol, and performance on the physical Field Sobriety Tests. However, losing the BAC evidence drastically weakens the prosecutor's case.
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