driving defendants to exercise their right to an
independent blood analysis as required by State v. Ettore,
228 N.J. Super. 28 (App. Div. 1988), certif. denied 114
N.J. 473 (1989) and State v. Hicks, 228 N.J. Super. 541
(App. Div. 1988), certif. denied 127 N.J. 324 (1990), and
defendant had unsuccessfully sought to exercise that
right, the breath test results indicating a blood alcohol
level beyond 0.10% would be suppressed. However, the
underlying facts showed that the police did not actively
deny the defendant her right to an independent test.
Rather, the denial of the test was the result of an
independent policy by a hospital not to conduct
independent tests without the consent of the police
department, a policy which has no supporting legal or
statutory requirement. Despite this, the drunk driving
conviction was affirmed because the municipal court
found evidence independent of the chemical breath test
results that supported a finding that the defendant was
driving while intoxicated. The continued validity of this
decision is questioned in State v. Jalkiewicz, 303 N.J.
Super. 430 (App. Div. 1997).
In Ettore, 228 N.J. Super. 28 the Appellate Division
held that the statutory right of a motorist to obtain an
independent test was not violated by the police when the
police declined to transport the defendant to a hospital
and would not release the defendant to the custody of a
taxi cab driver. Nor was there a denial of the defendant’s
right to an independent test as a result of an independent
policy by a hospital not to administer blood tests in the
absence of a medical reason. This holding overrules State
v. Nicastro, 218 N.J. Super. 231 (Law Div. 1986).
M. Pretextual and Rejected Defenses
State v. Hammond, 118 N.J. 306 (1990), rejected
involuntary intoxication as a defense to a DWI charge.
The court noted “[t]his kind of defense has the potential
for being pretextual, and is the kind of tenuous defense
the Legislature has sought to discourage by its enactment
of a statute based on objective measurements of
intoxication.” See, State v. Fogarty, 128 N.J. 59, 67, 68-
69 (1992); State v. Manfredi, 242 N.J. Super. 708, 710-
711 (Law Div. 1990).
State v. Lizotte, 272 N.J. Super. 568 (Law Div. 1993),
held that defendant’s alleged consumption of the
contents of an open can of beer after he observed that the
police were pulling him over, did not vitiate the
Breathalyzer test results or preclude his conviction for
DWI. It was not a defense, since it disregards the concept
of operation, i.e. an intention to operate coupled with real
ability to accomplish that goal while under the influence
of an intoxicant.Similarly, in State v. Snyder, ___ N.J. Super. ___,
2001 W.L. 83258 (App. Div. 2001), defendant made
the uncorroborated assertion that after causing an
accident in a tavern parking lot but before police arrived,
he drank whiskey from a bottle he kept in the car.
Defendant attempted to distinguish Lizotte on the
ground that his drinking and operation of the car was not
“so closely intertwined that they constituted one event.”
The Appellate Division found that defendant was
omitting critical facts, that the State showed a prima facie
case of a per se offense, the Breathalyzer results were
concededly accurate, and extrapolation evidence was not
permitted. It reiterated that the court has endeavored to
eliminate pretextual defenses, and would not encourage
a defense founded upon post-event voluntary ingestion of
additional alcohol by defendant, a “glove box” defense.- Insanity
State v. Inglis, 304 N.J. Super. 207 (Law Div. 1997),
concluded that the common law and penal code insanity
defense are not available to a defendant charged with
drunk driving, since this offense is a strict liability offense
requiring no culpable mental state.- Depletion of Simulator Solution Testing
Standard
State v. Benas, 281 N.J. Super. 251 (App. Div.1995),
held that expert testimony regarding depletion of the
control sample used to certify the machine was too
speculative and insufficient to support a viable attack on
the accuracy of the Breathalyzer test.State v. Slinger, 281 N.J. Super. 538 (App. Div.
1995), held that the State’s failure to prove the number
of times a simulator solution has been used and the actual
readings obtained by the State Police Coordinator when
the Breathalyzer was tested, inspected and found to be
operating properly was not critical. The court also
rejected the defense expert’s testimony that use of the
simulator solution up to 50 times, as a testing standard,
could lead to an error in the testing results.- Involuntary Intoxication
State v. Hammond, 118 N.J. 306 (1990), held motor
vehicle violations are not offenses under the Code of
Criminal Justice, and hence the Code’s provisions,
including the involuntary intoxication defense, do not