Women 60 or Older Facing DWI Refusal Charges May Have Recourse under New State Guidance
If you are a female who is at least 60 years old and have been requested to submit to breath testing, this Attorney General Directive applies to you. If you or your attorney are unaware that women aged 60 and older may be disadvantaged when submitting to breath testing, you must read this Directive to ensure that your rights are fully protected.
There are major flaws in the Alcost 9510 breath testing machines that can affect the results of breath samples for women who are 60 years old or older. The machines are used during statewide DWI investigations, and are improperly calibrated by its manufacturer. New Jersey Attorney General’s office admits this in its Statewide directive.
According to a memorandum from the Division of Criminal Justice, the firmware for the machines requires a 1.5 L breath volume from women who are 60 or older. However, the scientifically appropriate requirement for women of that age is a 1.2 L breath volume.
This can lead to situations where a machine rejects otherwise valid breath samples. It could even potentially lead to improper refusal charges under N.J.S.A. 39:4-50.4a.
Important Takeaways From the New Jersey Attorney General’s Directive
1. The Alcotest 9510 breathalyzer machine fails to require the correct breath sample for women 60+. As stated previously, the correct minimum for this group is 1.2 L. This is substantially different from the 1.5 L breath sample that is typically used for the general population.
2. Until the software on the Alcotest 9510 is corrected, police must not file refusal charges against women who are 60 years or older if the following conditions are met.
- A woman blew a breath sample of 1.2 L or more, but the machine still outputted an error message of “Minimum volume not achieved.”
- This error message persists on two or more attempts or once an accepted sample has been submitted.
These rules only apply to any refusal charges and do not impact other potential DWI charges or investigations that a driver may face.
3. All guidance prior to June 27, 2024 is still in place. It remains active until the firmware update for the machines is complete.
Why This Guidance Is Important
Defense attorneys across New Jersey have been raising concerns in recent months about the Altcost 9510 machines. They’ve maintained that these devices were unfairly treating older women as noncompliant, even in situations where they provided a legally sufficient breath sample.
This new guidance from the Attorney General’s office recognizes the flaws with the current software for the machines. It will also help stop wrongful arrests and prosecutions associated with DWI stops.
Drivers Affected by Altcost Breath Sample Errors Should Seek Legal Guidance
The temporary policy change affects refusal charges against women who were 60 years or older. It also affects pending DWI cases where the machines rejected an otherwise valid 1.2 L breath sample. Women in this age range who are facing refusal charges should carefully consider their legal options. Being convicted of a refusal charge can have a major impact on your life. For example, those wrongly convicted may lose their license and face substantial fines and surcharges.
Are you facing refusal charges in the state of New Jersey? The recent directive by the Attorney General’s office may affect your case. Our team of highly experienced New Jersey DWI attorneys at Beninato & Matrafajlo are here to answer any questions you may have. We are committed to helping all people across New Jersey understand their legal rights and upholding those rights through skilled advocacy. Whether you just have legal questions or need any other type of assistance, we are here to serve your needs. You can reach out to us anytime at 908-378-8467.
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