Drunk Driving and the Constitution

By: Mitchell E. Ignatoff

The 6th Amendment to the Constitution, in the Confrontation Clause, provides

“In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.”

In New Jersey, defendants are routinely denied this right. This makes New Jersey one of the most difficult states in which to defend anyone accused of drunk driving, whether due to alcohol or other intoxicants.

New Jersey drunk driving prosecutions are based on the alcohol content of your breath. The calibration of the breathalyzer, or the alcotest, is critical. Yet in New Jersey those accused of drunk driving are routinely denied the right to question the witnesses who calibrate these machines. If the prosecution is based on the results of the alcotest, you are routinely denied the right to even find out what was done to calibrate the alcotest!

If drunk driving prosecution was civil, you would have the right to depose - ask questions under oath - of anyone who had anything to do with calibrating the breath machine, and see the manuals they relied on, and the results of whatever tests they ran. But it is criminal, so under New Jersey law you do not have this right! This is worth your while, since even a first time drunk driving conviction results in about $850 in fines, usually a 7 month loss of license, a surcharge of $1,000 per year for 3 years, and vastly increased car insurance costs - in the neighborhood of $5,000 - $7,000 per year for 3 years. And this is true for anyone in the household, because they all have access to the car.

Drunk driving prosecutions are conducted in municipal courts, where you have no right to a jury. These courts are very similar to the British Admiralty Courts which our founding father, John Adams strenuously objected to (2 Legal Papers of John Adams, 194, 207). Municipal courts hold fast to trying to convict you within 60 days of your ticket!

In 2004 the United States Supreme Court decided Crawford v. Washington. This case held that the state must produce witnesses whose written statements are ‘testimonial’; the state cannot use their written statements, without them testifying at trial, to prove their case. A testimonial statement is any written statement (or out of court statement) made for the purpose of proving a fact in court. New Jersey adheres to Crawford when blood is drawn to see if you are under the influence of alcohol. But it does not when your breath is analyzed for alcohol content, at least not yet. What’s the difference between blood and breath analysis? The number of witnesses the state needs to prove a breath case is much greater than proving a blood case. There is no legal difference other than this. But this difference makes all the difference in New Jersey.

When selecting a lawyer to defend you, you need someone who is very familiar with Crawford . This is especially so when the state’s documents seem to show that the alcotest, or breathalyzer, was in proper working order. As Justice Scalia said

“Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse - a fact borne out time and again throughout a history with which the Framers were keenly familiar. “

John Adams, Benjamin Franklin, James Madison, and Thomas Jefferson thought you should have a right to cross examine all the state’s witnesses. I do too.