Contesting DWI Where Driver Vomited

Contesting DWI Where Driver Vomited.

The burden of proof to show that the procedures conditioning admissibility were complied with rests with the State and must be demonstrated by clear and convincing evidence. Thus, a defendant is not obliged to present proof that he did vomit or regurgitate in order to suppress the Alcohol test results, in the absence of affirmative proof from the State that defendant was continuously observed. Rather, the State must present affirmative proof that an operator actually observed the defendant. State v. Filson, 409 N.J. Super. 246 (Law Div. 2009)

If a driver regurgitated or vomited prior to the breath testing, that could have potentially affected the results. If the driver vomited the contents of his stomach, any raw alcohol or alcohol absorbed in the food particles would be in the person’s mouth at the time of testing, if that driver didn’t have an opportunity to rinse his or her mouth out. There are cases where a driver admitted to a police officer that he vomited prior to the investigation, or the officer saw the driver vomit at the scene of the investigation, or the officer saw the driver vomit back at the police station.

Vomiting doesn’t necessarily mean that the person is intoxicated. The person may just be sick from a virus. The person may have had food poisoning. Either way, the proper procedure that a breath test operator needs to follow is to make sure that the driver’s mouth is rinsed and cleaned of potential contamination before breathing into the breath test device. If that’s not done, then the breath test reading may be artificially inflated and inadmissible as evidence.

Vomiting before giving a breath sample affects the Blood Alcohol Content outcome registered on the breath test. Other factors may also affect the BAC level registered on the breathalyzer machine. source: https://www.winning-dwi-defenses.com/...

Questions to answer and provide to your attorney:

MEDICAL ISSUES or PHYSICAL PROBLEMS
Were you suffering from any physical problems or past injuries at the time of the arrest? If so, what parts of body?

Please Check
Explanation of physical problems or old Injuries ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________
➢Ankles ➢Feet
➢Legs ➢Back ➢Knee ➢Hips
__________ __________ __________ __________ __________ __________
Were you receiving any treatment for any of the following neurological conditions at the time of the arrest?

Please Check:
➢Vertigo (Dizzy) ➢Seizure disorder ➢Head injury
➢Nerve damage
➢Learning disability ➢Stroke
➢Depression ➢Sleep Apnea
Please Explain ___________________________________________ ___________________________________________ ___________________________________________ ___________________________________________ ___________________________________________ ___________________________________________ ___________________________________________ ___________________________________________
Do you see a chiropractor regularly? ☐ Yes ☐No
Do you see a psychiatrist/therapist? ☐ Yes ☐No
Do you have respiratory allergies? ☐ Yes ☐ No
Did you have a cold, flu or bronchitis at the time of the arrest? ☐Yes ☐No
Have you been hospitalized in the past? ☐ Yes ☐ No If so, was surgery performed? ☐ Yes ☐ No What surgeries?: ________________________________________________________________________________________________________________________________________
Please select the field sobriety tests you were ordered to perform ( X check all that apply and any important notes)
- Did not take any field tests
- Follow a pen, finger, or other object with your eyes
- Standing with my head tilted back and eyes closed, feet together
- Standing on one foot for a period of time
- Patting your hands together
- Saying or writing the ABC’s
- Walking a straight line, or heel-to-toe
- Touching your nose with finger
Other:
If 'Other', please indicate what they made you do?
If so, did the officer advise to you that you could refuse the road tests?
If so, what was the result of the test?
What type of shoes were you wearing?
Did you fail to satisfactorily perform the balance and coordination tests as demonstrated to you by the officer?
Describe the area where field sobriety tests were given?
Would you be able to go to and identify the area where field sobriety tests were given?
Would you be able to go to take 10-15 photos during daylight of the area where field sobriety tests were given?
Were you given a roadside handheld breath test?
source http://www.dwi-expert.com/wp-content/...