We recently assisted a client who was charged with Driving While Intoxicated on a major Middlesex County highway. After being pulled over for Failure to Maintain Lanes, he failed his Standardized Field Sobriety Test and was subsequently arrested and brought from his location on Route 287 to the Bridgewater Somerville Police Barracks where he was administered the Alcotest which yielded a BAC of .19%. Based on this reading, our client faced up to a 12 month loss of license, up to 48 hours IDRC, steep fines, and a MANDATORY installation of the Ignition Interlock Device. After five months of intensive case review and negotiation with the municipal prosecutor, we were able to have the .19% BAC reading suppressed based upon a “twenty minute issue.” Pursuant to State v. Chun, the State must prove by clear and convincing evidence that the suspected drunk driver must be observed for 20 continuous minutes by police to ensure that the suspect does not belch, burp, regurgitate, or have any other bodily function that may alter an Alcotest reading. Here, we raised the argument that the State could not establish by clear and convincing evidence that the Defendant was observed for twenty minutes prior to the administration based on the distance from the traffic stop to the police station, and the time needed for the police to arrive and escort our client to the observation room. As a result, the reading was suppressed and our client’s sentence was a 90 day loss of license rather than 7-12 months.
